#### Joseph Kaplan, Appellant, *v.*Morris Bergmann and Joseph . Fetner, Respondents.

Second Department,

December 5, 1907.

Real property — contract to convey absolute fee — encroachments — title > unmarketable.

When vendors contract to convey lands of specific dimensions in fee’ absolute “ subject to state of facts shown.” on a certain survey, the vendee may refuse-title and recover the" earnest money paid when the survey discloses that an ■ adjoining building encroaches on the boundaries to the extent of h gore five and one-half inches at the base, and running to ,a point nineteen feet and eleven inches from the base, and the vendors have ho title to the gore which they can pass subject to the encroachment as they had contracted to do.

Appeal by the plaintifE, Joseph Kaplan, from a judgment of the County Court of Kings: county, in favor of the defendants, entered in the office of the clerk of said county on the 1st day of April, 1907, upon the decision of the court, a jury having been waived, •dismissing the complaint upon the merits.

*Robert H. Roy [Harry Zirn*with him on the brief], for the appellant.

*Henry Hetkin,*for the respondents.

Rich, J.:

This is an action brought to recover money paid as a deposit pending passing of title and expenses incurred in an examination of the vendors’ title. The learned trial court found the facts in accordance with plaintiff’s contention, but found as matter of law that the objections, raised by plaintiff to defendants’ title were *877insufficient in law to entitle him to refuse performance of the contract, and that the defendants were able to convey the title to the premises mentioned therein according to the terms thereof.

In this conclusion the trial court was in error. By the terms of the contract the defendants undertook and agreed to convey to plaintiff the absolute fee of “premises known as 897-9 Myrtle Avenue, dimensions of land being thirty-one (31) feet nine (9) inches in front and rear and seventy-five (75) feet in depth on each side, subject to state of facts shown on survey of Fred Thomas, dated Feb. 2/04.” The survey referred to disclosed that a building on adjoining property encroached on the rear easterly side of the land described in the contract five and one-half inches at the northeast corner, extending easterly, constantly growing less until it ran out at a point nineteen feet and eleven inches from such corner. The defendants had no title to the land included in this gore, and could not give absolute title to it, subject to the "encroachment of the building, as they had contracted to do.

The rule is well settled that an encroachment to an extent less than the reduction of the area on the .lot in the case at bar constitutes a valid reason for rejecting a tendered title. *(Klim*v. *Sachs,*102 App. Div. 44 ; *Snow*v. *Monk,*81 id. 206 ; *Place*v. *Dudley,*41 id. 540 ; *Wilhelm*v. *Federgreen,*2 id. 483 ; affd., without opinion, 157 N. Y. 713.) The reasoning of the court in these cases applies with greater force to the case under consideration, where the only title the defendants could give deprived the plaintiff of the right of ownership as well as of possession of the land included in the gore. The defendants’ inability to convey to the plaintiff, as they had contracted to do, an absolute fee of the land described in the contract, subject to the encroachment shown by the survey, constituted a substantial objection to the title, which plaintiff had the right to avail himself of by refusing to accept the title tendered.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Jerks, Hooker, Gayror and Miller, JJ., concurred.

Judgment of the County Court of Kings county reversed and new trial ordered, costs to abide the event.