
    Charles J. Roussel, Plaintiff, v. Henrietta L. Lux, Defendant.
    (Supreme Court, New York Special Term,
    December, 1902.)
    Marketable title — Building restriction — Reformation of a contract, for mutual mistake, denied — Failure of proof of mistake.
    An existing enforcible restriction forever preventing any building, erected upon the land contracted to be sold, from being built out to the street line entitles the vendee to reject the title where the contract of sale calls for a fee simple.
    Reformation of a contract cannot be decreed for mutual mistake unless there is convincing proof that there was such a mistake and also what the real agreement was.
    
      Proof that, before a contract to sell land was drawn by the vendee’s agent, he had in his possession a policy, insuring the title, and that a schedule annexed thereto set up the building restriction by its date and the book and page of the record of it, does not, without more, show that the vendee must have intended the contract to be so drawn as that the title should be subject to the building restriction.
    Action to recover back a deposit paid upon a contract for the sale of land, and to recover the expenses incurred in examining the title.
    Alexander & Green, for plaintiff.
    Fromme Brothers, for defendant.
   Scott, J.

This is an action to recover hack the deposit paid upon a contract for the sale of a lot of land in West Fifty-first street in the city of ¡New York, and to recover the expenses incurred in examining the title, and for a decree that the amount found to be due to plaintiff be declared to be a lien upon the property described in the contract. On December 15, 1900, the parties to this action entered into a written contract whereby the defendant agreed to sell and convey to the plaintiff a lot of land with the building thereon, on .the north side of West Fifty-first street. She agreed te execute and deliver to him a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to him the fee simple of the said premises, free from all incumbrance, except yearly agreement with present tenant, and the privilege of defendant to remain in the apartments then occupied by her until the following February. Upon the signing of this contract plaintiff paid defendant $1,000, and he has incurred considerable expense in having the title examined. At the time fixed for closing the title, and again in his complaint the plaintiff has raised several obj ections to defendant’s title. . All but two of them, however, were waived on the trial. One of the .objections is that the property was subject to a perpetual easement or restriction which would forever prevent any building erected upon the land from being built out to the street line. It appears from the evidence that in the year 1819 one Henry Clifford owned the lot described by the contract, having a frontage of twenty-five feet on the street, and James A. "Stryker and Ambrose Stryker owned a plot adjacent thereto on the east having a frontage of 125 feet on the street. Rone of these lots were then built upon, but there were a number of other houses upon the northerly side of the same block all of which were set back at a uniform distance of about five feet from the street line. Clifford and the Strykers entered into an agreement in writing wherein they recited their respective ownerships as above, and that they had agreed with each other that when their lots were improved by having a house or houses built thereon such part of each of said lots as lies between Fifty-first street and a line parallel thereto, and equally distant therefrom with the line of the front of the dwelling-houses on the northerly side of Fifty-first street adjoining their premises, should be left and kept as and for an open space or court similar to the open space or courts in front of the aforesaid several dwelling-houses then erected on the said northerly side of Fifty-first street. They then mutually agreed with each other that they had laid out and appropriated, and thereby did lay out and appropriate such parts of the lands owned by them respectively as are above described as and for an open space or court to remain unobstructed forever after the said lots shall have a'house erected thereon, otherwise than by the necessary steps for entrance platforms and pedestals and railings connected therewith and inclosing the same and the foundations and copings upon which the said railings may be placed. They further for themselves, and their respective heirs and assigns mutually covenanted, promised and agreed with each other that the said space or court in front of the said lots of land so to be taken from each of them should forever be and remain an open space or court and should never at any time thereafter be appropriated for or occupied by any edifice, building or wall nor be obstructed otherwise than by the necessary steps for entrance platforms and pedestals and railings connected therewith and inclosing the same and the foundations and coping upon which said railings-may be placed. It was further mutually covenanted and agreed between the said parties that their agreements should be, and they were declared to be, covenants running with the lots of land owned by the parties respectively and with the title thereto and should.be equally obligatory upon the heirs and successors of the several respective parties and upon all and every person and persons who should thereafter become and be the owner or owners of the said lots respectively. This agreement was duly recorded in the register’s office. It cannot he doubted that by this agreement Clifford and the Strykers created mutual and reciprocal easements over their respective lands that no building should ever be so erected upon any of the lots as to cover the entire lot, and if the present or future owner of any lot covered by the agreement should undertake to so build he would undoubtedly be liable to an action at the hands of any owner of either of the other lots. Assuming this agreement to be enforcible, and I see no reason why it is not, a purchaser of any lot would be deprived of the beneficial use of a considerable portion of it. It needs no argument to show that such an agreement creates an incumbrance upon the title, and that a deed of the property subject to such restrictions would not convey to plaintiff what the defendant contracted to give him. The defendant, apparently recognizing the infirmity of her title, asks by her answer that the contract of sale be reformed, by excepting from the agreement to give a deed which should convey to plaintiff the fee simple of the premises free from all incumbrance the restrictions and covenants contained in the above-mentioned agreement between Clifford and the Strykers. Her allegation in this regard is that the attention of plaintiff was called to this agreement before he entered into the contract, and that he made the contract with full knowledge thereof, but that the restrictions were not excepted from the contract by mutual mistake and mutual oversight of plaintiff and defendant and the error of the party who drew the contract. The reformation of agreements by reason of the mutual mistake of the parties who made them is a well-recognized branch of equity jurisdiction, but to succeed in obtaining a decree for such a reformation the burden always rests upon the party seeking it to establish by clear, positive and convincing evidence that there was a mutual mistake, and what the real agreement was. The proof must be so convincing as to leave no room for doubt. Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Christopher & T. St. R. R. Co. v. Twenty-third St. R. Co., 149 id. 51. The evidence relied upon by the defendant falls far short of satisfying these stringent rules. It rests wholly upon the fact that before the contract was drawn one Robertson, who was plaintiff’s agent in the transaction, and who drew the contract, received from defendant a policy of insurance of her title issued by a title company, to which was attached a schedule purporting toxshow estates, defects or objections to title' and liens, charges and incumbrances thereon which do or may now exist and against which the company did not guarantee or agree to indemnify. In this schedule appeared assessments not confirmed, taxes and water rents for several specified years, and the agreement between Clifford and the Strykers, which was described merely by its date, and the liber and page of its record. There was no hint or suggestion in the policy as to the nature or purport of the agreement. The defendant never spoke to the plaintiff or Robertson with reference to it. There is no evidence that either the plaintiff or Robertson ever even read the schedule in which reference was made to the agreement, and they both swear that they never did. The defendant’s whole contention is that inasmuch as Robertson had the policy in his possession before he drew the contract of sale and the policy mentioned the agreement he must have intended to so draw the contract as that the title should be conveyed subject to the terms of the agreement. As well might it be claimed that he meant that the property should be conveyed subject to the unpaid taxes, because they too were mentioned in the policy. Written instruments carefully and deliberately drawn and executed are not to be transformed -upon such slight and unsubstantial evidence as is presented in this case. There must be judgment for the plaintiff as prayed in the complaint, with costs and an extra allowance of seventy dollars.

Judgment for plaintiff,' with costs and an extra allowance of seventy dollars.  