
    Gustave R. Floeting, Appellant, v. Louis J. Horowitz, Respondent.
    Second Department,
    June 7, 1907.
    Real property — vendor and purchaser—breach of contract as to dimensions.
    A vendee of lands who by the contract is entitled toa frontage of twenty,seven feet six'inclies may refuse to accept a d$ed and may recover earnest money when the lands tendered'have a frontage of only twenty,seven feet one inch, in the absence of a provision that the true dimensions aré to be determined by a survey. - '
    Appeal by the plaintiff, Gustave E. Floeting,. from a judgment of the 'Municipal Court of ,the city of New York, borough of Brooklyn,, seventh district, in favor of the defendant, rendered on the 7th day of December, 1906. ■ "
    
      Isidor Buxbaum, for the appellant.
    
      Charles S. Carrington, for the respondent.
   Hooker, J.:

The plaintiff agreed to purchase of the defendant premises- “ Being known as Seventy-one Pineapple Street, in the Borough of Brooklyn, New York City, same having a frontage of Twenty-seven feet six inches on Pineapple Street, with a depth of about One hundred and one feet;” and upon the execution of the. contract paid $100 in cash toward the purchase price. At the time set for the completion of the purchase the defendant tendered a deed, in which the premises- were described as being twenty-seven feet one inch and one-half frontage on Pineapple street-. This description was the result of a survey. ' The-entire front of the -premises was occupied by a brick apartment,house. The plaintiff refused to complete the purchase because the description did not conform with the description contained in the agreement as to the number of feet front, and has brought this action to recover the sum of $100 paid to apply on the purchase price and other proper and necessary expenses. The plaintiff’s complaint was dismissed and the defend- ' ant has been awarded a judgment upon his counterclaim for certain expenses he was put to in connection with the transaction.

TKe question presented is one of law. The case of Siebel v. Cohen (54 N. Y. Super. Ct. 436) is directly in point. There the court affirmed a judgment recovered by the plaintiff as damages sufficient to include a deposit made by him on the execution by the defendant of a written contract to sell to the plaintiff a lot known as 44 Monroe street, in the city of New York, said lot being twenty-four feet eight inches and one-lialf in front and rear by'ninety-seven feet six inches in depth on both sides. Tlie premises were in fact only twenty-four feet and three inches in width. The court said: “ The plaintiff was clearly entitled to a conveyance sufficient to vest in him the title to all, not merely a portion, of the lot as described .in the contract of sale, and to ■ compel him to pay the whole purchase money for a lot smaller than that described in that contract would be manifestly unjust.” The defendant relies upon Raben v. Risnikoff (95 App. Div. 68), where the deed offered in fulfillment of the contract purported to convey a lot thirty-one feet and three inches wide instead of thirty-two feet. This court there said: “There was no statement or claim in behalf of the vendor that the dimensions of the lot known by the street number 1012 Willoughby avenue were in fact smaller than the dimensions thereof specified in the contract, either‘to the extent indicated in the deed or to any extent; nor was there any statement or claim that an actual survey had been made whereby it' appeared that the dimensions had been overestimated.” This language of the court was .inspired by, and correct in view of, the language of the contract which provided that the dimensions of the lot whose sale gave rise to that cáse should be “ subject to a state of facts as a survey may show,” and the decision in thé Saben case was, therefore, to the effect that in the absence of proof as to what state of facts was shown by a survey provided for in-the contract, the vendee was not bound to take a deed which described substantially less land than the contract, even though the lot was also described by street and number. In the case at bar the contract is silent in respéct to any survey and contained no similar condition.

The judgment must, therefore, be reversed and a new trial ordered, costs to abide the event.

Woodward, Jenks, Gaynor and Bran, JJ., concurred.

Judgment of., the Municipal Court reversed and new trial .ordered, costs to ábide the event.  