
    MEADOWS et al. v. MICHEL.
    (Supreme Court, Appellate Division, First Department.
    May 19, 1911.)
    Vendos and Purchaser (§ 135)—Doubtful Title—Encroachments.
    Where plaintiffs contracted to purchase property from defendant which was shown to have lines so fixed as to constitute an encroachment on the land of an adjoining owner, so that without a release from such owner there would remain outstanding a possible claim of encroachment having reasonable ground of merit, the burden of defending against it should not be imposed on plaintiffs by a decree for specific performance, but plaintiffs could recover earnest money and the costs and expenses of examining the title, etc.
    [Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 255-258; Dec. Dig. § 135.]
    Appeal from Special Term, New York County.
    Action by James Meadows and others against John S. Michel. Judgment for plaintiffs, and defendant appeals. Affirmed on authority of Meadows v. Michel, 135 App. Div. 213, 120 N. Y. Supp. 319, and on the opinion of Bischoff, J., in the trial court, which is as follows:
    The plaintiffs were entitled to a conveyance of property the southerly boundary of which was to be upon a line at right angles to Eagle avenue, commencing 235 feet from the intersection of the line of Eagle avenue with the “northeasterly side of land occupied by the Morrisania Branch Railroad Company,” but, according to the weight of the evidence before me, I must hold that the line of the railroad property has been so located as to disclose a difference of 2 feet between the actual southern boundary of the lots in possession and the record boundary, to conform to the contract of sale, with a greater discrepancy as to the northern boundary. The deed from Anna Olsson to the defendant, produced as a means of curing this defect in the title, certainly fails to accomplish that result. While the lot in controversy was the centre lot of 3 at one time owned by Andrew Olsson, who devised the remaining 2 lots—surrounding the property in question—to Anna Olsson, it appears that the latter has conveyed to one Kitscheff the northerly of the remaining lots, and that this grantee’s ownership of record of a 25-foot lot conflicts with the northerly boundary of the defendant’s lot, upon the theory that the conveyance from Mrs. Olsson is effective to correct the record title as to the southern boundary. Without ta release from the owner of the northern lot, there remains outstanding, therefore, a possible claim of encroachment having reasonable ground of merit, the burden of defending against which claim should not be imposed upon the plaintiffs as the defendant’s grantees. There should be judgment for the plaintiffs for the return of the earnest money paid, and for $109.12, the expense of examination of the title, with costs. I have indicated upon the proposed findings submitted my disposal of the requests to find. Proposed decision and judgment may be presented on notice of settlement.
    J. B. Miller, for appellant.
    H. Swain, for respondents.
    
      
      For other cotes see same topic & § number in Dec. & Am. Digs. 1907 to late. & Rep’r Indexes
    
   PER CURIAM.

Judgment affirmed with costs, on the authority of Meadows v. Michel, 135 App. Div. 213, 120 N. Y. Supp. 319, and on the opinion of Bischoff, J., in the court below. Order filed.  