
    Samuel Wormser, Plaintiff, v. Henry Gehri and William Gehri, Defendants.
    (Supreme Court, New York Special Term,
    June, 1907.)
    Vendor and purchaser — Title and incumbrances — Title by adverse possession.
    Where a vendee, under a contract to convey real estate, refuses to take title solely upon the ground that.there are possible outstanding rights or interests in the property in the heirs or successors in interest of a former owner who died a hundred years ago, and the evidence in the action to recover the deposit made under the contract and for expenses in examination of the title shows a_ good and marketable title in defendants by adverse possession, the complaint will be dismissed.
    Actioot for specific performance of a contract for the sale of real property.
    Leo Schafran (Benj. Merger, of counsel), for plaintiff.
    Edward Herrmann, for defendants.
   Bruce, J.

This is an action for the specific performance of a contract for the sale of real property, the plaintiff being the vendee and the defendants the vendors under the contract.

The action was tried, however, not as one for specific performance, but for the recovery of the deposit made under the contract and the expenses of examining title. The plaintiff based his refusal to perform solely upon the ground that there are possible outstanding rights or interests in the property in the heirs or successors in interest of one Joost von Oblinus, who died over a century ago.

The premises in question are the house and lot lenown as Ho. 245 East Hinety-fourth street, and are part of an allotment made by Sir ¡Richard Hicholls, Governor, to the freeholders of the town of Hew Harlem.' An apportionment of the allotment appears to have been made by the freeholders among themselves in 1691, though there is no deed of such an apportionment on record.

Part of the allotment was marsh land and this appears to have been apportioned to von Oblinus, but the location of the boundary line between the upland and marshland is uncertain. The defendants’ title to the upper part of the premises in question is not disputed, and the southeasterly corner may or may not have been marshland. Moreover, in some of the early deeds of this section, the term “ meadows ” is used, and it is not altogether clear whether this term was used as to the meadow upland only, or also as to the marshland. The plaintiff contends that von Ohlinus made a conveyance of his allotment to one Waldron; and there is no evidence of any deed by von Oblinns, or Waldron, or their heirs or successors in interest, to any of the predecessors in title of the defendants or, in fact, to any one.

But we deem it unnecessary to discuss further the early history of the premises, since the evidence establishes a marketable title by adverse possession. Freedman v. Oppenheim, 187 N. Y. 101.

It is conceded that there is a complete chain of record title from the year 1852 of all the premises in question in fee simple absolute in the defendants; that the taxes upon the premises have been paid since that time by the several mesne grantees; that, in 1883, the then record holders acquired of the city of New York any interest which it might have in the premises as the successors of the freeholders of the town of New Harlem; that, about 1886, a five-story brick house was built upon the whole lot by one Shoppert, one of the holders in defendants’ chain of title, and that the entire premises have ever since been thus occupied.

It is further conceded that no proceeding has ever been brought by Joost von Oblinns, or his heirs, successors or assigns, to acquire or have adjudicated any rights of title of Joost von Oblinns, or his heirs, successors or assigns, in the premises in question, and that the residence or existence of any of the heirs or next of kin of Oblinus or of Waldron is not known and cannot be ascertained.

The evidence, therefore, establishes a good title in the defendants by adverse possession (§§ 369-370, Code of Civil Procedure) ; and the title being marketable (Freedman v. Oppenheim, supra), it follows that the refusal of the plaintiff to carry out the contract was wrongful and that the complaint should be dismissed. Steinhardt v. Baker, 163 N. Y. 410.

Complaint dismissed.  