#### Mary Urbach, Respondent, *v.*John E. Pye, Appellant.

First Department,

March 6, 1908.

Real property — contract for sale of city lots with buildings construed — variance in dimensions — acts estopping vendee from insisting upon letter of contract.

A contract whereby the plaintiff agreed to purchase all that parcel of land in the . county of New York, 346, 348 and 350 St. Nicholas avenue, with the buildings and improvements thereon, each being described as of certain dimensions, “all parcels being the same size, both front and rear, *moi'e or leas,”*should not be construed to mean that the purchase was according to the quantity of land, but that it was a purchase of three lots already built upon with fixed boundaries open and obvious in bulk.

The words “more or less,” as used in such contract, qualify all the-dimensions, not merely the dimensions across the front and-rear.

A vendee bound by such contract is not justified in refusing title on the ground that there was a material difference between the quantity of land described in the.contract and that described in the deed tendered, when it appears that the frontage, the most important dimension, was three-quarters of an inch greater than that specified, while the rear was nine and one-quarter inches less, and the width of the three lots, being of various dimensions, showed an average shortage of three feet ten and one-fourth inches, especially where, after the discovery of the shortage by a survey, the acts of the plaintiff tended to show a waiver of the objection.

When after learning the actual dimensions by the survey the vendee'induced the , vendor to extend her time and to make material changes in the contract faVor- . able to her and to incur expense in preparing purchase-money bonds and mortgages, her acts were inconsistent with a determination to stand upon her rights under the contract, even though the facts in themselves do not establish a waiver as a matter of law.

Appeal by the defendant, John E. Pye, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of July, 1907, upon the decision of the court rendered after a trial at the New York Special Term.

_ZY. *J. O' Connell,*for the appellant.

*Monfried do Feinberg,*for the respondent.

*588Laughlin, J.:

This is an action by a vendee of certain real property to-, enforce specific performance of the contract or to recover the down payment and expenses of examining tlie title, and ¡have the amount thereof declared a Hen upon and enforced against the land. The trial court has found that the deed tendered by the vendor was not a substantial compliance with the contract in that there was a material difference between the quantity of' land described in the contract and the land described in the deed-,, to which only defendant had. title. We are of opinion that' the proper construction of the contract shows that.the purchase was not according to the quantity of land, but of three lots, already built upon, with fixed boundaries open and obvious, in bulk, for a gross sum, and that there is not.such; a variance between the figures' in the contract indicating the. dimensions and the actual dimensions as shown by the survey and described in the deed tendered as justified the purchaser in refusing to. accept the title. . The contract was made on the 18th day .of June, 1906. The witness clause-recites that the defendant agreed to convey arid the plaintiff agreed to purchase *“*All that lot or parcel of land, in the County of New York, 346-348-350 [St-.] Nicholas Ave., with the buildings and improvements thereon, described as follows :* Party of the first part agrees to sell and' convey [to] the party ’ of the second part $346-348-350 St. Nicholas Ave., plot being size 25-3x81, 25-2x101) and 25-2x97, all parcels being the same size both front and rear more or less.” The purchase price was $76,500. The words 5t'more .or less ” in the contract, qualifying the dimensions, must be given force and effect. There can be no force given to them if the owner is to be held to tendering title to property of the precise dimensions specified in the contract. Of course, if there should be quite a material variance between the measurements specified in the contract and the actual measurements, this might in effect constitute' a misrepresentation, notwithstanding the insertion of the clause “ more . or less,” and in such case a court of equity would not enforce perforrriance. These words, however, fairly construed,-qualify all of the dimensions an/l not merely the dimensions across the front and rear, as contended by the learned counsel for the respondent. It is quite clear, I think, that this was an entire, indivisible purchase of the three' parcels/ and I do not understand that *589this is controverted. We come now to a consideration of a difference between the measurements specified and thus qualified in the contract, and the actual dimensions of the property. We find at the outset that the frontage, which is the most important dimension, was greater by three-quarters of an inch than that specified in the contract. The total width across the rear is nine and one-quarter inches less than that called for by that provision of the contract which is to the effect that the lots are “ the same size both front and rear.” It is conceded that the words “more or less” qualify the dimensions as to width. The side lines evidently are straight lines, so that the three parcels, taken as one, gradually diminish in width from the-front, which is three-quarters of an inch wider than called for by the contract, to nine and one-quarter inches at the rear. The lines of the lot are nearly parallel with One Hundred and Twenty-eighth street, which lies about fifty feet to the north; but.they do not run at right angles to-St. Hicholas avenue, on which they front. The southerly lot, being Ho. 346, described in the contract as eighty-one feet in depth, is in fact eighty feet one and three-quarters inches on the southerly line, and seventy-six feet five inches on the northerly line, making a shortage on the southerly line of ten and one-quarter inches and on the northerly line. four.feet seven inches. The middle lot, being Ho. 3.48, is described in the contract as one hundred and one feet in depth, and. it is in fact one: hundred and one feet two and one-quarter inches on the southerly line and ninety-seven |eet five and oiie-half inches on the northerly line, making a surplus of two and one-quarter inches in the length of the southerly line and a shortage of three feet six and one-half inches on the northerly line. The northerly lot, being Ho..350, which is described in the contractas ninety-seven ■ feet in depth, is in fact ninety-seven-feet five and one-half inches on the southerly line and ninety-three feet nine inches on tlie northerly line, making a surplus in the length of the southerly line of five and one-half inches and a shortage in the length of the northerly line of three feet three inches. The evidence does not show to what extent the buildings cover the premises or that the plaintiff had any knowledge of the facts other than as indicated in the contract. By the provisions of the contract, however, she had notice that there had been a practical location of the lots by buildings *590thereon and that their depth varied. There is no evidence to show the difference in value between the lots as they existed and their, value if they had been of the precise dimensions specified in the contract. It may he that the extra three-quarters of an inch in frontage width adds to the value as much- as the irregular shortage in the depth takes from it. 2sTo foundation was laid by the plaintiff for an abatement of any part of the purchase price upon the theory of a difference between the value of the lots as shown by the survey and the value if they had been of the dimensions specified fin the contract, and the question as to whether an allowance could-be made and the defendant at the same time be compelled to convey is not presented for decision. The defendant appears to have been ready and willing to convey,. according to the description in his title deeds and according to the survey, but'the plaintiff refused to take title unless the defendant would allow her vendee a deduction from the purchase price of $500 for each lot. As already observed, the bare facts showing the difference between the actual measurements and those contained in the contract, which is all that has been shown, were not sufficient to justify the plaintiff in refusing to accept the title. We are influenced in reaching this con-. elusion by the conduct of the plaintiff after discovering the shortage in the measurements, which tends to show; a waiver of the objection. After the contract was signed, a survey of the lots.was made and the plaintiff thereby ascertained the actual measurements. Prior to the time for passing tjtle under the contract, she had also entered into a contract to sell the premises ■ to another, but whether before or after'-the survey was made does not appear. It does appear, however, that after a survey was procured by. her or through her attorney for her vendee, from which she discovered the shortage in the measurements, she made a formal application, in writing, to an attorney for a loan upon the premises and therein described them as being seventy-five feet in width and having a depth of from eighty to one hundred feet.

e

On the day for closing the title the. defendant failed to appear at the time and place specified, but appeared three days later and excused his failure, and negotiations were resumed as if at the time agreed upon. The attorney, for the plaintiff at this time stated that lie had discovered a shortage in the measurements and desired time *591to adjust the matter with the plaiiitiff’s vendee. The defendant acquiesced in this suggestion. Five days later, on the 12th day of September, 1906, the attorneys for the parties met. It is conceded that the plaintiff had at this time been unable to arrange with her vendee and was not ready to perform and requested further time. The attorney for the defendant testifies that he then informed the attorney for the plaintiff that if the objection to the shortage in the measurements was to be adhered to, there was no object in a further postponement and that the attorney for the plaintiff agreed that if an adjournment for closing the title should be granted until the fifteenth of October, that objection would be waived; and that he thereupon agreed to see his client with a view to obtaining authority to consent'to the adjournment. The testimony of the attorney for the plaintiff does not differ materially from that given by the attorney for the defendant with respect to this interview, excepting that he denies that he agreed to waive the objection and on that subject he testifies that he expressly refused to waive it unless the plaintiff’s vendee would agree to waive it. It does appear, however, that the attorneys again met on the nineteenth day of September, after the attorney for the defendant had had an interview with his client concerning the adjournment and that at this time a formal stipulation, in writing, extending the time for closing the contract to the fifteenth day of October, with the privilege to the purchaser to have it closed sooner on five days’ notice, was made and signed by the attorneys. This stipulation modified the original contract in other .material respects, but contains nothing on the subject of this objection or of a waivef thereof. By the original contract the vendor was to accept a second mortgage in part payment, with an outstanding first mortgage of $14,000 on each lot. The stipulation increased the amount of the first mortgages to $17,000 — thus materially affecting the vendor’s security under the second mortgages — provided that the purchaser should pay the expenses for drawing the second mortgage and the mortgage tax thereon, and that the attorney-in-fact for the plaintiff, who signed the contract for her, should give his personal bonds to secure the purchase-money mortgages. It also provided that the attorney for the vendor should prepare the second mortgages and bonds, which was not stipulated in the original contract.' The stipu*592latioH.also provided that the contract should he closed, .as of-the adjourned date, .with the exception that the.purchaser should pay the-annual taxes which- would become a lien upon the property in the meantime. There' were no negotiations, indicating that it was. possible for the defendant- to convey title literally according to the measurements given in the contract, and yet, after full knowledge -of the discrepancy and.'making the .application for the loan, and getting the. extension of- time, the firm of which the plaintiff’s attorney-in-fact was a- member advertised. the prémises for sale, representing that they, were the ■ owners,, and ■ thereafter plaintiff-gave notice under the,stipulation of her desire to close the contract, ■on the third day of October, but, so "far as. appears, made no reference to .the shortage, in the measurements. At the request of the plaintiff the time rivas further postponed until the fourth day. of October, and at this time the parties met. in the office of the attorney of- one Clare, who was to loan $17,000 to the plaintiff on each lot from which -evidently the former mortgages were-to be discharged, and shortly thereafter, information was received by .telephone that plaintiff’s vendee, to whom it was understood title was to be given, refused to take title unless there was an allowance made of-$500 on each lot on account of shortage. The defendant refused to make any allowance for shortage and contended that the plaintiff had waived any right to make such claim. Thereupon the defendant duly tendered a deed duly executed, conveying title to the plaintiff, and demanded performance by plaintiff and for that purpose tendered the bonds and mortgages for execution by plaintiff. Although* these facts in and of themselves perhaps did not establish a waiver, as matter cf law, they are inconsistent with plaintiff’s standing Upon her rights. She had no reason to believe that - defendant, could convey any more land than the survey showed, and yet she induced the defendant-to extend her time and to make material changes in -the contract favorable to her and to incur expense in preparing che bonds and mortgages. These facts tend to show that the plaintiff did not. regard the shortage as vital, and tend to show also that the plaintiff understood that -she ..was purchasing the lots as they existed, which is, we tlfink, as already observed, the.proper construction of the contract.

*593It follows that the judgment should he reversed and a new trial granted, with costs to appellant to abide the event.

• Patteeson, P. J., McLaughlin, Houghton and Scott, JJ., concurred.

\ '

Judgment reversed, new trial ordered, costs to appellant to abide event.'