
    Axel E. Blixt, Respondent, v. Eltoma Realty Company, Appellant.
    Second Department,
    May 6, 1910.
    Specific performance — pleading — affirmative defenses — repudiation of contract by vendee — failure to amend answer to conform to proof— evidence —burden to show that title is marketable by adverse possession— judicial notice.
    In an action to compel the specific performance of a contract to convey lands the defense that the vendee elected to terminate the contract by serving a notice that after a certain date he would consider time to be of the essence of the contract is affirmative, being new matter by way of avoidance, and must be pleaded by the defendant in order to be available.
    Even though proof of such act on the part of the vendee was given at trial and an affirmative finding of the fact made by the court, a judgment for the plain- ' tiff will not be reversed if there was no amendment of the answer to conform it to the proof in this respect.
    A vendor who claims that his title, although not complete of record, is marketable by virtue of adverse possession, is under the burden- of establishing the title by adverse possession.
    The court "will not take judicial notice of the fact that real estate has risen in value owing to a change in the condition of the market.
    Appeal by the defendant, the Eltoma Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day *of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      Charles C. Suffren, for the appellant.
    
      Emil Sehneeloeh \H. Schieffelin Sayers and Harry Percy David with him on the brief], for the respondent.
   Carr, J.:

The defendant appeals from a judgment entered against it for . the specific performance of a contract to convey real property. The question involved in the appeal is quite narrow. The defendant as vendor agreed to sell to the plaintiff certain real property described in a written contract. Time was not made the essence of the contract: The day for the'closing of the title was "adjourned several times. Then the plaintiff served the defendant with a written notice tjrat time would be made the essence of the contract on the adjourned date. When that day came the- plaintiff refused to take the title tendered by the defendant on the ground that the defendant at that time had no record title prior to 1900. On the same date the plaintiff served a notice in writing on the defendant demanding the return of the earnest money paid under the contract, together with the costs of searching the title. This demand not being complied with, the plaintiff began an action asking relief in the alternative form either for specific performance or for his damages, that is, for his deposit and the costs and expenses incurred by him. The defendant answered denying generally certain allegations of the complaint, and setting up good title by adverse possession. The action dragged along for more than a year before coming to trial. When it came to trial the plaintiff claimed that the title had become marketable in the meanwhile because of the act of the-defendant in perpetuating certain testimony in regard to the adverse possession and elected to take such title that the defendant had then and there. The defendant put-in no evidence whatever in support of its claim that it had good title by adverse possession on the- final clo|jng day of the title. Judgment was awarded for the plaintiff.

The chief -contention of the appellant is that the plaintiff by making time the essence of the contract, and by serving a notice in writing demanding the return of the deposit money, had elected to treat the contract as at an end, and, therefore, could not. maintain an action for specific performance of it. • I think that this objection would have been good if the defendant had pleaded it as an affirmative defense. (Monds v. Birchell, 59 Misc. Rep. 28J7)-. It was new matter, by way of avoidance, and, therefore, should have been pleaded in the answer. It is-true that proof was given of this circumstance on the trial, and that an affirmative finding of fact tó this effect was made by the court on the defendant’s request. Yet the defendant made no request to have its answer amended to conform to its proof, and in my opinion this question cannot be considered on appeal, for the purpose of reversing the judgment entered below.

There is also some discussion in the appellant’s brief to sustain its claim that at the time set for the closing of the title it had as a matter of fact a marketable title resting upon adverse possession. I think the true rule of law is that where one claims to have a marketable title by virtue of adverse possession, without a complete record title, the burden is upon the -party asserting such right to establish it. As before stated, no proof was given by the defendant to show adverse possession in it or its predecessors in title, although such an allegation was made in the answer. Considerable time elapsed between the trial of the case and the time set for the completion of the contract, and perhaps there was some change in the value of the property in the meantime which might have influenced the court to decline to decree specific performance. Yet there is no proof whatever on the subject, and we cannot take judicial cognizance of the condition of the real estate market, as it changes from time to time.

I recommend, therefore, that the judgment be affirmed, with costs.

Hirsohberg, P. J., Jenks, Burr and Rich, JJ., concurred.

Judgment affirmed, with costs.  