
    Luke Higgins, Respondent, v. Thomas Eagleton, Appellant.
    (New York Common Pleas—General Term,
    June, 1895.)
    A statement in the description of the property in a contract of sale that one of the walls is a party wall clearly implies that the others are independent structures.
    Where a wall is wholly on one of two contiguous lots of land, yet subject to appropriation and use for the purpose of a party wall, it constitutes an incumbrance or defect in the title of the lot on which it stands.
    Cancellation of an incumbrance after rescission of the contract is of no avail to the vendor in an action brought solely to recover the money paid on the contract and damages.
    Where the vendor cannot convey a clear title, no formal tender by the purchaser is necessary to entitle him to recover the damage sustained by the breach of the contract.
    Plaintiff contracted to purchase a certain house and lot of defendant, which was to be conveyed free and clear of all incumbrances other than a mortgage and certain tenancies and covenants. Plaintiff objected to the deed tendered on the ground that the beams of an adjoining house, also owned by defendant, were inserted in the wall of the house intended to be conveyed, and rescinded the contract, although defendant offered to execute a release of the easement. At this time the adjoining premises were subject to a mortgage. In an action to recover the money paid upon the contract and for damages, held, that such use of the wall constituted an incumbrance not mentioned in the contract; that a release thereof by defendant would have been unavailing without the consent of the mortgagor; that even if such consent were obtained the beams, which were not removed, would remain a physical incumbrance, and the plaintiff was entitled to recover.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    
      A. H. Stoiber and Ezekiel Ei-jomcm, for appellant.
    
      John J. Macklim, and James F. Swanton, for respondent.
   Pryor, J.

The plaintiff entered judgment on a verdict directed by the court for the sum of $1,350, of which $1,000 was paid by plaintiff on account of the contract price of premises known as 420 Hudson street in the city of Hew York, with interest, and $200 for plaintiff’s expenses in examining the title.

. Defendant appeals from the judgment and from an order denying a motion for a new trial.

Defendant agreed to sell to plaintiff the premises No. 420 Hudson street, twenty-three feet front and rear by sixty feet on each side, the northerly wall being a party wall, and, on receipt of the contract price, to convey the premises by a proper deed containing a general warranty and the usual full covenants for conveying and assuring to plaintiff the fee simple free from all- incumbrances except a mortgage of $20,000, certain specified tenancies and certain covenants against nuisances.

At the time appointed for closing the title defendant tendered a deed unexceptionable in form; but plaintiff objected to the title on the ground, “ That the premises are now incumbered by an easement in favor of the owner of the adjoining house on Leroy street, in that the beams of said house are inserted in the wall of the house you contracted to convey free from any incumbrance.” Other objections were that the premises were incumbered with a mortgage of $26,000, taxes $228 and water taxes $25, none of which were mentioned in the contract. Defendant tendered a release and checks for and offers to pay the taxes. Defendant claims that plaintiff waived strict performance in respect to these incumbrances. Webster v. Kings County Trust Co., 64 N. Y. St. Repr. 698.

Plaintiff elected to rescind the contract, so notified defendant.and demanded the return of the $1,000 paid on the contract and $500 damages; but no damages were shown on the trial or recovered other than the $200 expense in examining the title.

The action is at law, not in equity, and proceeds on the theory that plaintiff was justified in rescinding and did rescind the contract at the time appointed for closing the title. No equitable relief is demanded by either party, and they are concluded by the form of the action. Zorn v. McParland, 8 Misc. Rep. 126; 59 N. Y. St. Repr. 521.

The evidence shows that the vendor was the owner of both parcels of land, No. 420 Hudson street and No. 3 Leroy street (St. Luke’s place); that the houses were built together in 1855 ; that beams of the house No. 3 Leroy street extended over and were inserted about four inches in the rear wall of No. 420 Hudson street; that said wall was entirely .on the premises contracted to be conveyed; 'that there was a mortgage on No. 3 Leroy street; that defendant’s attorney proposed to have defendant sign a release of the easement but did not procure or tender the release as plaintiff objected that, signed by him alone, it would be unavailing. Plaintiff was ready and willing to perform his part of the contract, but made no tender because advised that it would be useless, since defendant could not convey a clear title. There is no evidence that plaintiff knew of the situation of this rear wall at the time he signed the contract.

The expression in the contract that the northerly wall is a party wall very clearly indicates that the other walls are independent structures. O’Neil v. Van Tassel, 137 N. Y, 297, 301.

When a wall, as in this case, is wholly on one of two con•tiguous lots of land, yet subject to appropriation and use for the purpose of a party wall, it constitutes an incumbrance or defect in the title of the lot on which it stands. Giles v. Dugro, 1 Duer, 331.

And a right of action immediately accrues on the covenant against incumbrances by reason of the breach thereof. Mohr v. Parmelee, 43 N. Y. Super. Ct. 320.

If the owner of two adjoining lots erects a house on each, with a party wall between them, and conveys them on the same day to two different purchasers, but one of the deeds excludes the party wall, the purchaser of the other house is, nevertheless, charged with having the wall stand as a support to the other house at least as long as the building will endure. Rogers v. Sinsheimer, 50 N. Y. 646.

It is plain that the rear wall of the premises which defendant agreed to sell was incumbered with an easement not mentioned in the contract; that the deed tendered by defendant would not have extinguished it; that the release signed by defendant alone which his attorney proposed to have executed, but did not tender, would have been unavailing without the consent of the mortgagee; and that even with the deed and the release of the easement signed by both the vendor and the mortgagee, the beams would still have remained a physical incumbrance, menacing the free use and possession of the wall. Whether or not defendant offered to remove the beams, the fact remains that they were not removed. Had plaintiff taken title with the beams still in the wall, it would have cost something to remove them and considerable damage to No. 3 Leroy street. Plaintiff denied, however, that such proposition was made.

The mortgage on No. 3 Leroy street was canceled after the rescission of the contract and before the trial; but as specific performance is not sought in this action, such a cancellation does not help the defendant. Mott v. Ackerman, 92 N. Y. 539.

Defendant claims that jjlaintiff did not object to the title on the ground that there was a mortgage on No. 3 Leroy street which prevented a release of the easement. We think the term owner,” used by plaintiff in his objection to the title is broad enough to include both the vendor and mortgagee, the legal as well as the equitable owner.

At the close of the case defendant moved to dismiss the complaint on the ground that there was no proof of tender made so as to entitle plaintiff to any damage by reason of defendant’s failure to carry out the contract, but the court properly denied the motion. In Bigler v. Morgan, 77 N. Y. 312, 317, the referee found that no formal tender was made by plaintiff; that plaintiff was ready and willing to perform; that defendant could not convey a clear title; and plaintiff recovered judgment for $500 expended in searching the title, which was affirmed by the General Term and the Court of Appeals.

The expert witness, Kennelly, testified, without contradiction, that in his opinion the fact that the beams were inserted in the wall of 420 Hudson street did not affect the value or salability of that property. This opinion differs from the opinion of the court in Giles v. Dugro, 1 Duer, 331, where it is held that more than nominal damages might be recovered because of the easement.

The defendant requested the court to submit to the jury the question whether the purchaser was or was not justified in refusing to accept the title because of the fact that the beams in the house 3 St. Luke’s place (Leroy street) were inserted in this wall, and more especially because, according to the testimony, the insertion of the beams in the wall had no effect upon the value of the property.

If this submission had been made, and the jury had found for the defendant, it would have been the duty of the court to set the verdict aside. The request was, therefore, properly refused.

Judgment affirmed, with costs.

Bookstaveb and Bischofe, JJ., concur.

Judgment affirmed, with costs.  