
    George Sprickerhoff and Gustav Scharenberger, Plaintiffs, v. David Gordon, Defendant.
    First Department,
    July 15, 1907.
    Beal property — specific performance — title of purchaser on foreclosure of mechanic’s lien.
    When a notice of mechanic’s lien does not give the street number of the premises 'and describes them as half the actual width, the vendee of'the purchaser of the whole premises ón foreclosure will not be compelled to take title and ■ may recover earnest money paid, even though the complaint ■ and Us pendens gave the true width of the lot. The title isso doubtful that equity will not decree specific performance.
    Such title is also rendered doubtful,by; the failure of the plaintiff oh foreclosure to make other lienors who had filed lien's between his original notice and an, amendment to his complaint and Us pendeiis parties defendant.
    Clarke and Houghton, JJ., dissented.
    Submission of a controversy upon, an agreéd. statement of facts pursuant to section 1279-'of the Code of Civil Procedure^
    
      Mortimer M. Menken, for the plaintiffs.
    
      Joseph G. Engel, for the defendant.
   McLaughlin, J.:

This case comes before the court■ upon an agreed statement of facts under'section 1279 of the Code' of Civil Procedure.

The plaintiffs filed a notice of mechanic’s lien against certain land in the'' city of New York owned hy one Bonginsky. Subsequently an action was brought' to foreclose the lien, which resulted in a judgment, in pursuance of which a sale was had, and the premises were bid off by the defendant — he then paying a portion of the purchase money. The balance was agreed to be paid some time thereafter when the deed was to be delivered. At the time, fixed for closing the transaction the referee tendered a deed, which the defendant' refused to accept on the ground that the title to the premises was not marketable, and at the same time demanded back the money which he had paid. This was refused, and thereupon this submission was entered into — the plaintiffs asking for a judgment directing the defendant to accept the deed of the premises from the referee, and the defendant 'asking that he have a judgment relieving him from accepting such deed, and that the plaintiffs be directed to pay back to him the sum of $150, the amount which he paid to the referee at the time of the sale.

The premises in question are situated on the southwesterly corner of Broome and Mangin streets, in the city of New York, and have a frontage of fifty feet on Broome street and seventy-five feet on Mangin street. The notice of lien was filed on the 5th of October, 1906, and there then stood upon the premises a building not quite completed, which had one entrance upon Mangin street. The action to foreclose was commenced on October 26,1906, in the City Court of the city of New York, and a notice of pendency of action duly filed on that day.' Thereafter the plaintiffs obtained' an order amending the summons and complaint by adding additional parties defendant, and an amended notice of pendency of action was filed on the 21st of November, 1906. Intermediate the filing of these notices two other notices of mechanics’ liens were filed against the premises, one on October twenty-ninth and the other on November twenty-first. Neither of these claimants was made party to the foreclosure action, and all of the defendants defaulted.

The defendant objected to taking the title ivpon several grounds, first, because the description of the premises in 'the notice of lien filed was. insufficient within the meaning of the Mechanics’ Lien Law to sustain the judgment directing the'sale. The point of his objection in this respect was this : The notice of lien filed described the property as Situated in the 13th Ward of the Borough of Manhattan in the City of New York, on the S. W; corner of Broome & Mangin St., being about 25 feet and . inches wide, front and rear, by about 75 feet and ' inches deep on each side, and known as number and shown, on the. following diagram.” Then followed .-the diagram showing a lot corresponding to the description. The lot upon which the building stood was actually fifty, instead of twenty-five feet wide, and was so described in' the original and amended notice of pendency of action and in. the original and amended complaint, and in fact in all of the subsequent papers and' the street number was .also .given.

The statute (Laws of 1897, chap.' 416) provides (§ 9, subd. 7) that the notice of-lien shall state:, “The property subject to the . lien with a description thereof sufficient for identification, and if in a city, or village, its' location^ by street and number, if known.” The notice here filed -did -not give the street number, nor,'.in my - opinion, did it describe sufficiently for identification the lot which was sold. In a populous city like New York I do not think good title, can be given, to a lot'fifty feet in width on the foreclosure of a lien when the notice of lien describes the lot as about twenty-five feet in width. The judgment of foreclosure, in pursuance of which a sale is had, has - for its foundation the notice of lien upon which its validity " depends. It is true the -statute is remedial and is -to receive a liberal construction, but this does not authorize the court . to entirely dispense with what the statute says the notice must contain. . (Mahley v. German Bank, 174 N. Y. 499.)' To hold under the facts here presented that good title to the lot. in question can be. -given by the. referee is to disregard the notice and supplement it by extrinsic proof, and I do not-see how that can be-done. (Armstrong v. Chisolm, 100 App. Div. 440.)

There certainly is sufficient doubt about the. question so that a purchaser ought not to be compelled to take the.title. The right to specific performance is to be granted or withheld upon consideration of all the circumstances and in the exercise of a sound discretion. , The general rule is that a purchaser will not be compelled to take a doubtful title or one which ‘he inay be obliged to defend by litigation. (McPherson v. Schade, 149 N. Y. 16; Vought v. Williams, 120 id. 253; Abbott v. James, 111 id. 673.) . “ The pui> chaser is entitled to a marketable title.. A title ■ open to a reasonable doubt is not a marketable title. The court cannot make it such by passing upon an objection depending on a disputed question of fact or a doubtful question of law in.the absence ..of" the party in whom the outstanding right was vested.” (Fleming v. Burnham, 100 N. Y. 1.) The defendant.also objected to the title upon the ground that the claimants who filed notices of lien intermediate to the filing- of plaintiffs’ notices, were not made parties defendant. It would seem as if there were force to this objection. There certainly is enough, to it to create a reasonable doubt, apd for that reason the defendant ought not to be compelled to take the title.

Other objections are raised which would require serious consideration, but having reached the conclusion that the defendant should have judgment, it is unnecessary to pass upon'.them.

The defendant is entitled to judgment relieving him from accepting the deed offered by the referee, and also for $150 paid by him, besides costs.

Ingraham and Lambert, JJ., concurred; Clarke and Houghton, JJ., dissented on the ground that .the plaintiffs in their opinion were entitled to judgment.

J udgment ordered for defendant, with costs.  