Per Curiam.
The questions in this case are presented by a submission of the controversy between the parties upon admitted facts under the provisions of the Code of Civil Procedure. (§§ 1279-1281.) The obvious purpose of this action was to obtain an adjudication as to the right of the plaintiff to compel the defendant to accept the title offered to certain real estate which it contracted to sell and convey to him free from any incumbrance
or
lien thereon. The latter refused to complete his purchase upon the ground that a local assessment made for the improvement of Seventh avenue in the town of Mew Utrecht was a lien or incumbrance upon the premises, and, therefore, the title offered was not marketable and not such as the plaintiff contracted to give. That the assessment, if a valid lien upon the property, was sufficient to justify the defendant’s refusal to complete his purchase, is not denied. Mor can the plaintiff succeed unless the proceeding in which the assessment was made was void upon its face, so that it constituted no cloud upon its title. Thus, the broad question is presented whether that assessment upon its face was so clearly illegal that it was not an apparent lien upon'the property which was the subject of the contract between the parties.
The claims of the plaintiff are : 1. That a portion of the property upon Seventh avenue which, under section twenty-
eight of the resolution of the board of supervisors of Kings county, should have been assessed for the improvement of that street, was owned by the Sisters of Mercy, a charitable corporation, and that the grading commissioners, in making their assessment, omitted to assess that property upon the ground that it was exempt under the provisions of chapter 622 of the Laws of 1886. 2. That this statute was invalid because in
conflict with section 16 of article 3 of the Constitution, and, hence, did not justify its exemption. 3. That the omission to assess that property rendered the whole assessment void ; that its invalidity was apparent from the proceeding under which it was made, and, hence, void upon its face, and not even an apparent lien upon the premises.
With our view of this case we deem it unnecessary to decide whether chapter 622, Laws 1886, is violative of the Constitution, or to determine whether, if an omission of a portion of the property mentioned in section twenty-eight of the resolution of the supervisors of Kings county had appeared upon the face of the proceeding, it would have rendered the assessment void. If we assume the invalidity of the statute and that the omission of any portion of the property referred to in that section rendered the assessment void, still, unless we find upon the face of the assessment proceeding something to show that the property of the Sisters of Mercy was liable to assessment and did not bear its proportion of the expenses of the improvement, the assessment constituted at least an apparent lien upon the plaintiff’s property, and its title cannot .be regarded as marketable or free from incumbrance.
Unless the proceeding was void upon its face then, confessedly, the defendant is not obliged to complete his contract. It is not sufficient to entitle the plaintiff to recover that the defendant might, by extrinsic evidence, establish facts which would invalidate the assessment. He was entitled under his contract to a title that was valid upon the record, that was unincumbered, and to one that was marketable. When we examine the assessment proceeding as it is set forth in the record we find nothing in it which conclusively establishes the inva
lidity of the assessment.
Nor does
it show upon its face the omission of any property which should have been assessed.
Section twenty of the resolution of the board of supervisors, which authorized the improvement of Seventh avenue, expressly provides that the grading commissioners appointed by the supervisor of the town should enter upon the lands and premises taken for the street, cause the same to be graded, constructéd and improved, and assess the expense thereof, which they should estimate to be necessary and proper, upon the lands and premises which in their judgment should be benefited by said improvement, in proportion to the benefits accruing to them by reason thereof, and extending as thereafter provided. By section twenty-six, section twenty, which related to Seventy-sixth street, was made applicable to Seventh avenue. Section twenty-eight, as amended, provides that the assessment districts should extend to and include the lands on each side thereof severally and respectively- as follows:
“
Seventh avenue, to the distance of three hundred and fifty feet on each side thereof, from Warehouse avenue to the city line of Brooklyn.”
The provisions of section twenty-eight and section twenty are somewhat in conflict. By the latter it would seem that the grading commissioners were to determine what lands were benefited by the improvement, and that it was only upon such as they should determine to be benefited that the assessment was to be made. On the other hand, section twenty-eight prescribes the districts of assessment, and that the assessment district for Seventh avenue should extend to and include the lands on each side thereof as above stated.
We do not deem it essential to pass upon the question whether the grading commissioners were vested with discretionary power to determine what lands were benefited by the improvement and to confine their assessment to those only, or whether the provisions of section twenty-eight control and required them to include all the lands on each side of Seventh avenue to the distance of three hundred and fifty feet. For, be that as it may, that question cannot be regarded so free
from doubt as to enable the plaintiff to properly claim that the assessment is absolutely invalid because some portion of the property within the assessment district was omitted, or that the commissioners did not have a discretion under section twenty to exempt any property which they deemed not to be benefited by the improvement. We think this question was involved in a degree of uncertainty which rendered the plaintiff’s title so far doubtful that the defendant should not be required to accept the title tendered.
Moreover, we are of the opinion that there is nothing upon the face of the proceeding which shows that the lots owned by the Sisters of Mercy were not assessed. The only evidence we find in the record bearing upon that question is contained in the list of assessments attached to the report of the grading commissioners. By that instrument they reported that they had caused a map of the avenue to be made and signed by them which was annexed, showing the several parcels of land
assessed
for such improvement and specifying the names of the owners of each parcel so assessed, and that they had made such
assessments
specifying the names of the owners so far as. known, as shown in the table of assessments. Then follows a number of parcels of real estate, opposite which it purports to give the lot numbers upon the map, the names of the owners, of land assessed, a statement of the respective interests of the-persons interested in it, and the amount of assessment to be-paid by each person for land benefited by the improvement.
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Per Curiam.
The questions in this case are presented by a submission of the controversy between the parties upon admitted facts under the provisions of the Code of Civil Procedure. (§§ 1279-1281.) The obvious purpose of this action was to obtain an adjudication as to the right of the plaintiff to compel the defendant to accept the title offered to certain real estate which it contracted to sell and convey to him free from any incumbrance
or
lien thereon. The latter refused to complete his purchase upon the ground that a local assessment made for the improvement of Seventh avenue in the town of Mew Utrecht was a lien or incumbrance upon the premises, and, therefore, the title offered was not marketable and not such as the plaintiff contracted to give. That the assessment, if a valid lien upon the property, was sufficient to justify the defendant’s refusal to complete his purchase, is not denied. Mor can the plaintiff succeed unless the proceeding in which the assessment was made was void upon its face, so that it constituted no cloud upon its title. Thus, the broad question is presented whether that assessment upon its face was so clearly illegal that it was not an apparent lien upon'the property which was the subject of the contract between the parties.
The claims of the plaintiff are : 1. That a portion of the property upon Seventh avenue which, under section twenty-
eight of the resolution of the board of supervisors of Kings county, should have been assessed for the improvement of that street, was owned by the Sisters of Mercy, a charitable corporation, and that the grading commissioners, in making their assessment, omitted to assess that property upon the ground that it was exempt under the provisions of chapter 622 of the Laws of 1886. 2. That this statute was invalid because in
conflict with section 16 of article 3 of the Constitution, and, hence, did not justify its exemption. 3. That the omission to assess that property rendered the whole assessment void ; that its invalidity was apparent from the proceeding under which it was made, and, hence, void upon its face, and not even an apparent lien upon the premises.
With our view of this case we deem it unnecessary to decide whether chapter 622, Laws 1886, is violative of the Constitution, or to determine whether, if an omission of a portion of the property mentioned in section twenty-eight of the resolution of the supervisors of Kings county had appeared upon the face of the proceeding, it would have rendered the assessment void. If we assume the invalidity of the statute and that the omission of any portion of the property referred to in that section rendered the assessment void, still, unless we find upon the face of the assessment proceeding something to show that the property of the Sisters of Mercy was liable to assessment and did not bear its proportion of the expenses of the improvement, the assessment constituted at least an apparent lien upon the plaintiff’s property, and its title cannot .be regarded as marketable or free from incumbrance.
Unless the proceeding was void upon its face then, confessedly, the defendant is not obliged to complete his contract. It is not sufficient to entitle the plaintiff to recover that the defendant might, by extrinsic evidence, establish facts which would invalidate the assessment. He was entitled under his contract to a title that was valid upon the record, that was unincumbered, and to one that was marketable. When we examine the assessment proceeding as it is set forth in the record we find nothing in it which conclusively establishes the inva
lidity of the assessment.
Nor does
it show upon its face the omission of any property which should have been assessed.
Section twenty of the resolution of the board of supervisors, which authorized the improvement of Seventh avenue, expressly provides that the grading commissioners appointed by the supervisor of the town should enter upon the lands and premises taken for the street, cause the same to be graded, constructéd and improved, and assess the expense thereof, which they should estimate to be necessary and proper, upon the lands and premises which in their judgment should be benefited by said improvement, in proportion to the benefits accruing to them by reason thereof, and extending as thereafter provided. By section twenty-six, section twenty, which related to Seventy-sixth street, was made applicable to Seventh avenue. Section twenty-eight, as amended, provides that the assessment districts should extend to and include the lands on each side thereof severally and respectively- as follows:
“
Seventh avenue, to the distance of three hundred and fifty feet on each side thereof, from Warehouse avenue to the city line of Brooklyn.”
The provisions of section twenty-eight and section twenty are somewhat in conflict. By the latter it would seem that the grading commissioners were to determine what lands were benefited by the improvement, and that it was only upon such as they should determine to be benefited that the assessment was to be made. On the other hand, section twenty-eight prescribes the districts of assessment, and that the assessment district for Seventh avenue should extend to and include the lands on each side thereof as above stated.
We do not deem it essential to pass upon the question whether the grading commissioners were vested with discretionary power to determine what lands were benefited by the improvement and to confine their assessment to those only, or whether the provisions of section twenty-eight control and required them to include all the lands on each side of Seventh avenue to the distance of three hundred and fifty feet. For, be that as it may, that question cannot be regarded so free
from doubt as to enable the plaintiff to properly claim that the assessment is absolutely invalid because some portion of the property within the assessment district was omitted, or that the commissioners did not have a discretion under section twenty to exempt any property which they deemed not to be benefited by the improvement. We think this question was involved in a degree of uncertainty which rendered the plaintiff’s title so far doubtful that the defendant should not be required to accept the title tendered.
Moreover, we are of the opinion that there is nothing upon the face of the proceeding which shows that the lots owned by the Sisters of Mercy were not assessed. The only evidence we find in the record bearing upon that question is contained in the list of assessments attached to the report of the grading commissioners. By that instrument they reported that they had caused a map of the avenue to be made and signed by them which was annexed, showing the several parcels of land
assessed
for such improvement and specifying the names of the owners of each parcel so assessed, and that they had made such
assessments
specifying the names of the owners so far as. known, as shown in the table of assessments. Then follows a number of parcels of real estate, opposite which it purports to give the lot numbers upon the map, the names of the owners, of land assessed, a statement of the respective interests of the-persons interested in it, and the amount of assessment to be-paid by each person for land benefited by the improvement. When, however, we reach lots numbered 487 and 488, all we-find in the record is the numbers of the lots, the name “ Sisters of Mercy ” under the caption “ Names of the Owners of Land assessed for the Improvement,” followed by the words
“
An Estate in fee.” Here the record ends so far as these lots are concerned. Surely there is nothing upon the face of that report or assessment to show that the Sisters of Mercy had any property within the assessment district that was not assessed. The most that can be said is that it failed to show that any of its lands were assessed. We think with this condition of the record there follows no conclusive inference that
this land was'assessable and not assessed. Therefore, it cannot be said that the proceeding was void upon its face upon the ground of any such omission.
To entitle a vendor to specific performance of a contract for the purchase and sale of real estate he must be able to tender a marketable title. A purchaser ought not to be compelled to take property, the possession or title of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one which, if he wishes to sell, would be reasonably free from any doubt which would interfere with its market value. If the title may be fairly questioned, specific performance will be refused.
(McPherson
v. Schade, 149 N. Y. 16.) The principle of that case was followed in
Heller
v.
Cohen
(154 N. Y. 299), and it was also held that where a vendee seeks to rescind a contract on account of a defect of title, the question of the materiality of the defect is one of fact when it depends upon and is an inference to be drawn from circumstances. Besides, the right of specific performance rests in the judicial discretion of the court, and may be granted or withheld upon a consideration of all the circumstances and in the exercise of that discretion.
(Stokes
v.
Stokes,
155 N. Y. 581.)
When we apply the principles of these decisions to the facts in this case, it becomes apparent that the plaintiff was not in a position to compel the defendant to specifically perform the contract between the parties. A contrary determination might result in compelling him either to pay the amount of the assessment as an incumbrance upon the property or to conduct a serious and protracted litigation to defend his right of possession or the title he would acquire. This he is not required to do.
We think the result reached by the court below was right and that its judgment should be affirmed, with costs.
All concur.
Judgment affirmed.