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Allen v. McKeon

111 N.Y.S. 328 Court N.Y. App. Div. Decision date 1908-06-12 English

Delivered by RICH, J.

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p. 328
ALLEN v. McKEON.
(Supreme Court, Appellate Division, Second Department.
June 12, 1908.)

Headnote

Vendor and Purchaser—Contract for Sale—Approved Title. Under the provision of a contract for sale of land, “The title to be * * * such as Lawyers’ Title Insurance & Trust Company will approve and insure,” the purchaser is entitled to a title so approved and insured, so that, such company refusing to approve and insure it, she may recover
p. 329
the payment made, though another company will approve and insure the title.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 260.]
Appeal from Municipal Court, Borough of Brooklyn, First District.
Action by Anna M. Allen against Nora P. McKeon. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILDER, JJ.
Eugene N. L. Young (James R. McNally and Joseph A. Hart, on the brief), for appellant.
Arthur Ofner, for respondent.

The contract for the sale of the real estate described therein provided, among other things:

“The title to be given and accepted hereunder shall be such as Lawyers’ Title Insurance & Trust Company will approve and insure.”

It appeared upon the trial that the said company refused to approve and insure the title tendered by defendant, and this appeal is from a judgment for the plaintiff in an action brought to recover the amount paid upon the execution of the contract, together with necessary expense incurred in the examination of the title.

It is contended on the part of the defendant that the refusal of the insurance company was capricious and unreasonable, that the title tendered was marketable, and that she was able, ready, and willing to give a marketable title, approved and insured by another company. The case turns upon the meaning of the clause in the contract quoted. I think the plaintiff had a right to insist upon a title approved as provided in the contract, and this is not in conflict with the decision of this court in Downs v. Lehman, 123 App. Div. 11 , 107 N. Y. Supp. 329 , cited by the learned counsel for the respondent. The same question was involved in Flanagan v. Fox, 6 Misc. Rep. 132 , 26 N. Y. Supp. 48 , and it was there held, in a learned and well-considered opinion by Mr. Justice Bischoff, that an action in such circumstances is maintainable.

The judgment of the Municipal Court should be affirmed, with costs. All concur.

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