
    Solomon Klim, Respondent, v. Rachel Sachs, Appellant.
    
      Specific performance — the title to a lot encroached upon by buildings on cm acljoin- ' ing lot is unmarhetable — a deposit and costs should not be adjudged to be a lien on the lot—effect of an encroachment on the street.
    
    Evidence that the buildings erected on premises adjoining a lot contracted to he sold encroach on such lot from one to three and a half inches, justifies the contract vendee in rejecting the title and entitles him to the return of a cash deposit made by him on account of the purchase price and to recover the reasonable expenses incurred by him in procuring a search and survey of the premises.
    A judgment awarding the vendee this relief should not, however, impress the premises contracted to he conveyed with a lien for the amount awarded together with interest and costs.
    
      Quaere, whether the fact that the show windows of a building, erected upon the premises contracted to he conveyed, encroached upon the street for a distance of sixteen or seventeen inches, or the further fact that the buildings themselves, irrespective of the show windows, encroached upon the street from one and a half to five inches, rendered the title unmarketable.
    Appeal by the defendant, Bachel Sachs, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Ki'ngs on the 18th day of March, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Jacob J. Lesser, for the appellant.
    
      M. H. Newman, for the respondent.
   Willard Bartlett, J.:

The defendant, being the owner of the premises known as 89 Throop avenue, in the borougli of Brooklyn, entered into a written agreement with the plaintiff whereby the plaintiff agreed to purchase the property for the sum of $9,800, and the defendant agreed to convey the same by a full covenant warranty deed free of all incumbrances, except three certain mortgages specified in the agreement. The plaintiff paid to the defendant $300 on account of the purchase price specified in the contract, but when the time arrived for passing the title the plaintiff refused to accept the deed tendered by the defendant on the ground that the title was unmarketable because of certain encroachments of adjoining buildings thereon and because the buildings on the property to be conveyed themselves encroached upon the street. Upon these facts and the further allegation that he had incurred an expense of $75 for .examining the title to the premises and obtaining a survey thereof, the plaintiff brought this action in which he demanded judgment that if it were decreed by the court that the defendant had a good and marketable title, she should be compelled to specifically perform the terms of her contract ; but that if it were decreed that she had not such title, the plaintiff have judgment against her for $375 and that said judgment be impressed as a lien upon the defendant’s land as described in the contract. The learned judge at Special Term found that the defendant could not convey a good and marketable title on account of the encroachments and intrusions which existed on the premises and on the street in front thereof, and thereupon rendered judgment in favor of the plaintiff in accordance with the prayer of the complaint.

The evidence upon the trial showed encroachments upon the street of sixteen and seventeen inches by the show windows of the two buildings erected on the premises. Counsel for the respondent however, concedes that these encroachments cannot be deemed substantial under the decisions in Volz v. Steiner (67 App. Div. 504) and Webster v. Kings County Trust Co. (145 N. Y. 275). It was also made to appear by the survey which was put in evidence that the buildings themselves, irrespective of the show windows, encroached upon the street from one and a half to five inches, and it is contended that such latent encroachment rendered the title to the property unmarketable under the decision of the General Term of the Hew York Superior Court in Smithers v. Steiner (13 Misc. Rep. 517). However this may be, the further uncontradicted proof showing that the adjoining buildings encroached from one to three and a half inches upon the property contracted to be sold justified the vendee in rejecting the title. (See opinion of Ingraham, J., in Volz v. Steiner, 67 App. Div. 508.) The trial court was, therefore, right in adjudging that the plaintiff was entitled to the return of the $300 deposit and to recover.the $75 claimed as a reasonable expense incurred in making the search and obtaining the survey.

The judgment rendered, however, was erroneous in so far as it impressed this sum, together with the interest and costs, as a lien upon the premises which were the subject of the contract. The cases relied upon by the respondent as sustaining, this procedure were cases in which the vendees, under an agreement to sell, had taken actual possession of file land and were held to be entitled to an equitable lien on the premises .for the moneys expended in improvements thereon. (King’s Heirs v. Thompson, 9 Pet. 204; Gibert v. Peteler, 38 N. Y. 165.) Ho lien exists, however, in behalf of a purchaser under the circumstances disclosed by the evidence in this case.

The judgment should be modified by striking out all that portion thereof which relates to the alleged lien and its foreclosure, and as thus modified should be affirmed, without costs of this appeal to either party.

Hiesohberg, P. J., Woodward and Jenks, JJ., concurred; Hooker, J., not voting.

Judgment modified by striking out all that portion thereof which relates to the alleged lien and its foreclosure, and as thus modified affirmed, without costs of this appeal to either party.  