Fineman v. Callahan

222 A.D. 752

Opinion

Judgment reversed upon the law and the facts, and new trial granted, costs to appellants to abide the event. Findings of fact “ third,” “ fifth,” “ sixth ’j and “ eighth ” and all the conclusions of law are reversed. We are of opinion that the proof was sufficient to justify the finding of the trial court that plaintiffs had waived the question of inability to procure a title company policy. Nevertheless, if the encroachments shown to be against the property, beyond those mentioned in the contract which it was agreed that the plaintiffs should take the property subject to, were of a substantial nature, the plaintiffs were justified in refusing to take title. Encroachments were shown to exist, and, with such proof, plaintiffs were entitled to judgment unless the defendant was able, upon the trial, to show that they were trivial and did not affect the marketability of the title. The defendant sought to make this proof, but the court excluded it. Young, Rich, Kapper, Hagarty and Seeger, JJ., concur.