Kelly v. Brower — 7 N.Y.S. 752

Majority

p. 752

Kelly v. Brower.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

Vendor and Vendee—Rights oe Vendee.

One who has contracted to purchase vacant lots with a frontage of 75 feet is not entitled to be discharged from such contract because of his vendor’s failure of title to 14 inches frontage, to which, it appears, no especial value attaches, but only to an abatement, in the price.

Appeal from special term, Kings county.

Action by Edward E. Kelly against James 0. Brower. The complaint was dismissed without costs, and judgment entered, decreeing specific performance of the contract mentioned in the opinion, without costs. Plaintiff appeals from the dismissal of bis complaint, and defendant appeals from that portion of the judgment denying him costs.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Jackson & Burr, (Jos. A. Burr, Jr., of counsel,) for plaintiff. William T. Gilbert, for defendant.

The plaintiff contracted to purchase from defendant some vacant lots on Elm street, Brooklyn, with a frontage of 75 feet. Upon an examination of the title, his counsel were of the opinion that as to 14 inches of the front the defendant’s title was not perfect. Thereupon plaintiff refused to take the title, and brings this action to recover the earnest money, and the expense of searching the title. The defendant answers, averring that the title is perfect, and asking that plaintiff be required to take the title and pay the purchase price.

An examination of the testimony satisfies the court that the special term correctly sustained defendant’s claim. But, were it otherwise, the judgment would not necessarily be disturbed; for, by plaintiff’s own admission, defend-" ant was in position to substantially perform his contract, and offered to do so. On that state of facts, the most plaintiff could reasonably ask would be an abatement in the contract price. Were it conceded that the-title failed as to the 14 inches in dispute, the abatement would be about $70 from the stipulated price of $4,500. The lots being vacant, it sufficiently appears from the maps filed and the other testimony that no especial value attaches to the disputed 14 inches. The plaintiff does not ask for any abatement, but for a full discharge, to which, upon his own showing, he is not entitled. Judgment affirmed, with costs. All concur.