
    Elmer A. Darling, Plaintiff, v. Robert Alexander, Defendant.
    First Department,
    January 8, 1909.
    Real property —vendor and purchaser — marketability of title — inconsistencies in description of boundary between adjoining lots.
    In construing deeds, as in the case of contracts, the interpretation is not always to he determined by the precise language of the description, but reference may he had to accompanying facts and circumstances in order to ascertain the intention of the parties.
    A vendee cannot refuse to take title to two adjoining lots owned by a single vendor on the ground that a prior owner when conveying the lots to separate parties described one of the lots as hounded by the center of a party wall standing equally on both lots, while the other deed, although describing the center of the party wall asfa boundary, also described by precise measurements, which threw the boundary one-half inch off the center line of the wall. This, because it was apparent that the former owner intended to convey the houses as they stood with the party wall between them as a boundary for each.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.
    
      
      Walter F. Peacock, for the plaintiff.
    
      Philip S. Dean, for the defendant.
   Scott, J,:

On August 11, 1908, the parties entered into a contract whereby plaintiff agreed to sell and defendant agreed to purchase two lots of land with the buildings thereon known as Nos.- 45 and 47 West Twenty-seventh street, in the city of New York. The defendant having objected to the title, the parties agreed to submit their differences to the court. The facts, briefly stated, are as follows:

The premises are fifty feet in width on Twenty-seventh street, beginning 200 feet'easterly from the easterly side of Sixth avenue, and running fifty feet easterly along the northerly side of said Twenty-seventh street. Both lots, on which were built two houses with a party wall between them, belonged in 1858 to" one Josiah Jex. He conveyed the easternmost house and lot to Benjamin A. Onderdonk by deed dated March 1,1858, and conveyed the westernmost house and lot to Amanda Guión by deed dated May 5, 1862. Both properties are now owned by plaintiff, who has contracted to sell them to defendant.

The lot sold by Jex to Onderdonk was conveyed by the following description : “ Beginning at a point on the northerly boundary line of Twenty-seventh street, distant two- hundred and twenty-five feet six inches easterly from the point where that line intersects the easterly boundary line of Sixth avenue; running thence northerly, parallel with Sixth avenue and through the centre of a party wall ninety-eight feet nine inches; thence easterly along the centre line between Twenty-seventh and Twenty-eighth streets. twenty-four feet six inches, thence, southerly parallel with Sixth'avenue, through the centre of a party wall, ninety-eight feet nine inches to Twenty seventh street; thence along the northerly side- of Twenty-seventh street westerly,-twenty-four feet six inches to the point or place of beginning.”

The lot sold to Guión was conveyed by the following description : “ Commencing at a point on the northerly side, of Twenty-seventh street, between Sixth avenue and Broadway, distant two hundred feet easterly from the easterly side of Sixth.avenue; running thence easterly along the said street twenty-five feet six inches to the centre line of a pat'ty wall standing one-half on the lot hereby conveyed and one-half on the lot adjoining the same on the east / thence northerly at right angles to said street, part of the way through the centre of said party wall, ninety-eight feet nine inches to the centre line between Twenty-seventh and Twenty-eighth streets; thence westerly parallel with said Twenty-seventh street twenty-five feet six inches; thence southerly at right angles to said street ninety-eight feet nine inches to the point or place of beginning. The easterly wall of the house of said premises being a party wall in connection with the hotise on the lot' on the east of the premises hereby described.

. It is conceded that the party wall between the two houses is from half an inch to an inch west of a line 225 feet 6 inches from Sixth avenue.

The defendant’s objection to the title is that the deed to Onderdonk described the property by precise measurements and that they control, the. reference to the party wall being insufficient to control the measurement so as to move the westerly boundary an inch or half an inch west of the line precisely designated. He relies upon Smyth v. McCool (22 Hun, 595). On the other hand, he contends that in the deed to Onion the center line of the party wall is expressly used as a monument and overrides tlie distances expressed in feet and inches. Hence he argues that Jex never parted with title to a strip of land an inch. or half an inch wide running right through the lot.

We do not think'that the objection is well taken. In construing deeds, as is true as to other contracts, their interpretation is not always to be determined by the precise language of the description, but reference may be had to the accompanying facts and circumstances in order to ■ ascertain the intention of the parties. (Mott v. Eno, 181 N. Y. 346, 373.) It is perfectly evident that Jex intended to convey both houses just as they stood with the party wall between them serving as a boundary for each, and it requires no strained construction to give this effect to the language he used. In Smyth v. McCool (supra) the adjoining property on which the purchaser feared his house would be found to infringe belonged to a third party, a stranger to the title under which the purchaser would acquire if he completed' the purchase. In that important particular that case differs from the present. There must be a judgment for the plaintiff as demanded in the submission, with costs. .

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Judgment ordered for. plaintiff as demanded in submission, with costs. Settle order on notice.  