Steckler v. Godillot

17 Misc. 286, 40 N.Y.S. 364

• Court: City of New York Municipal Court
• Decided: June 15, 1896
• Status: Published

Opinion

■Ooexab, J.

This is an appeal from a judgment entered in favor of the plaintiff on the verdict of a jury. ■

The. action was brought.to recover the sum of $500, which the plaintiff had paid to defendant as part of the purchase price of certain premises in the city of ¡New York, and the sum of $250 incurred by the plaintiff in the examination of the defendant’s title. The facts were as follows: ■ ■. " ■

Defendant, being the owner of the premises ¡No.. 127 Clinton place, agreed to sell. the same to the plaintiff for the sum of $20,5.00 and to convey the fee simple, free from all incumbrances.

The premises, as described in the .contract, were in dimensions: Twenty-four feet eleven inches on the ¡North side, of Eighth street, by ninety-three feet and eleven inches in depth. The contract also contained the following clause: .

“It is agreed by the party of the second part that upon the - closing of the. title no objection will foe raised by him as to the . difference between the record title as shown by the deed to Godillot and the title as in possession as shown by Towle’s survey, dated.' September 22, 1884.”, -

This-survey was produced upon, the trial and showed that the ' buildings measure twenty-five feet in'front and ninety-four feet in depth on each side, thus exceeding the record title by one inch both in front and depth. ; V ;t '

On the -trial six surveyors were examined, as witnesses, five of whom testified that the building was larger than the Towle survey, varying in depth from one-half to five inches.

At the conclusion of the trial, no motion was made for a new trial or to set aside the verdict.

The appellant relies upon his exceptions to the charge of the court and to the refusal of the court to charge as requested, as follows:

“ I ask your honor to charge that if the jury find an encroachment of the building at the rear beyond the ninety-three feet eleven inches described in the contract, that it was the duty xo show that the defendant did not have title to the strip of land upon which the encroachment was built.”

Also, “ I except to your honor’s charge to the jury that if they find that the encroachment exceeds Towle’s survey, plaintiff is entitled to recover; and also to .that part of the' charge, that if the jury find there was any encroachment whatever from the house line of the street, the plaintiff is entitled to recover.”

This case differs from an ordinary contract of purchase and sale; where slight or immaterial variances may be deemed to be within the contemplation of the.parties.

In this case, the contract expressly limits the variance to one inch in length and depth, and beyond that length the purchaser was not bound to go. The exception to the charge, therefore, furnishes no ground for reversal.

As to the refusal of the court to charge as requested, the answer is that the deed tendered only purported to convey ninety-three feet and eleven inches of land in depth, while the building was conceded to be at least ninety-four feet deep, and there was some testimony to show that it was ninety-four feet and five inches.

Presumably, the deed tendered. covered all that plaintiff had to convey, and we do not think it was any part of the duty , of the purchaser to ascertain who owned the land in the rear, upon which the building was manifestly an encroachment.

Judgment affirmed, with costs.

Van Wyck, Ch. J., and O’Dwyer, J., concur.

Judgment and order affirmed, with costs. .