#### Emma Merges, Plaintiff, *v.*Mary Ringler et al., Defendants. Jacob F. Oppermann, Jr., by Guardian *ad Litem,*Plaintiff, *v.*Phillipine Oppermann et al., Defendants.

(Supreme Court, New York Special Term,

July, 1898.)

Partition — A purchaser will not be allowed to rescind for slight encroachments, but may be allowed for remedying them.

A purchaser upon a sale in partition will not be relieved from his purchase of a very large and valuable brewery property, and its fixtures, merely because the property encroaches a few inches on adjoining property, nor because an inclosing wall, which might easily be removed, encroaches slightly on a street — an encroachment which has become permissible because not attacked by the city of New York, under chapter 610 of the Laws of 1896, within one year from the passage of that act.

In such a case, where the proof of practical location and adverse possession is substantially complete and justice requires the contract of purchase to stand, the court will give weight to equitable considerations and will reserve a part of the purchase price, to the end that a referee may determine the expense to which the purchaser will be subjected for removal and repair on account of encroachments and such an amount will be allowed him.

Motion by purchaser of real and personal property sold under judgments for an order relieving him from his purchase.

George E. Mott, for plaintiff.

J. Aspinwall Hodge, Jr., for guardian *ad litem*Jacob F. Oppermann, Jr.

Zeller *&*Miehling, for defendants Ringler et al.

Guggenheimer, Untermyer *&*Marshall, for defendant Doelger.

Ashbel P. Fitch, for executors.

Edward Lyman Short, for Mutual Life Ins. Co.

Root, Howard, Winthrop *&*Stimpson, for Robert J. King, Jr., purchaser.

*318Russell, J.

The purchaser moves for an order relieving him from his purchase of the real estate and personal property sold under .the judgments in the actions above entitled. The first of the actions was for partition of the-real estate, and the second an auxiliary action to join the personalty upon the premises with the realty in one' sale, in order to procure a larger price than was likely to be obtained by a sale of the realty alone. The property sold was the Oppermann brewery in the city 'of Hew York, and the sale of the personalty connected with it enabled the purchaser to take the whole property as a going concern with the good will attached to it, and without interruption of continuous business. The purchaser obtained the whole of the property on the sale under the two judgments for the sum of $702,000, and paid 10 per cent, in cash down. The sale occurring in the spring, allowed the purchaser to take advantage of the usual contracts with saloons for the retailing of the beer manufactured, and a resale at this time of the year would tend to -largely depreciate the amount to be obtained for the property. 1

Objection is made by the purchaser that a portion of the build- " ings encroaches .upon adjoining property; that an addition to one of the front walls encroaches upon the street; and that a part, of the premises included in the description contained in the notice of sale is occupied by adjoining owners. It is impracticable to determine with certainty, in view of the differences between the surveyors as to the exact extent of the encroachments by- the .structures pertaining to the property,, and those of adjoining owners; but it is ■ quite certain that those which are the most serious, on account of the structural" encroachments, are only from one to four inches in width. That upon the street is not the encroachment of the building, but rather an inclosing wall, which might easily be removed and the objection seems to be disposed of, so far as this motion is affected, by chapter 610 of the Laws of 1896, which provides that the mayor, aldermen and commonalty shall bring an action within one year after the passage of that act for the removal of such a wall, and in default of such action that the wall shall not. be removable.

It is quite certain that the purchaser hat a right to demand a marketable title Or he will be relieved from .the obligation of his purchase. Holly v. Hirsch, 135 N. Y. 590, 598; Haberman v. Baker, 128 id. 253; Crouter v. Crouter, 133 id. 55; Fleming v. Burnham, 100 id. 1; Smyth v. McCool, 22 Hun, 595; Wilhelm v. Federgreen, 2 App. Div. 483.

*319¡But it might he quite difficult to find in the city of Mew York, among the older buildings, a boundary foundation or a vertical wall that was on the exact mathematical line, and the question, therefore, must always arise in such disputes as to the importance of the encroachments. To apply such a consideration to the case in hand a broad view of the general purpose of the purchase, and the property bought, must be had, as well as the practical use to which it has been applied for many years. The Op'permann brewery property has evidently been used for the manufacture and sale of beer for many years in the city of Mew York, and has a recognized identity valuable for business purposes. So far as the evidence goes no interference has ever been had during the many years of its existence with any of the premises devoted to the manufacture of beer, either by suit or by possession of adjoining claimant owner, and all that seems to be essential in connection with the primary, and perhaps exclusive use of this property, has been enjoyed in peace and quiet for more than the statutory years determining practical location with adverse possession. It is apparent, therefore, that the purchaser obtained all that could be supposed to enter into the consideration of his judgment in making his purchase, and that his objections lie more towards the theoretical criticism of the title to a few inches of the premises described, no part of which encroachment, from the character of that portion of any building lying upon it or for any cause is essential to the enjoyment of the thing purchased, which is grouped together in the land, buildings, personalty and good will.

I do not think a purchaser, who not only wants to use but also has the privilege at any time he may choose to sell and convey a marketable title, should be compelled to rely upon a title by adverse possession to any considerable portion of the premises purchased, for he can only convey a good record title by carrying to a conclusion a litigation to quiet his title as against all possible claimants. But, in the consideration of the question as to whether the objection is a finical one, undisputed enjoyment for many years covering the statutory period may be shown to- diminish .the force of the apparent objection on account of a slightly encroaching structure. See Sherman v. Kane, 86 N. Y. 57; Pierson v. Mosher, 30 Barb. 81; Swettenham v. Leary, 18 Hun, 284; Corning v. Troy, etc., Factory, 44 N. Y. 577; Hinkley v. Crouse,. 125 id. 730.

Proof of practical location and adverse possession in this case is substantially complete, and the purchaser obtained what he *320sought to buy, with no diminution' upon the record title greater than at a ratio of perhaps 500 to 1, and even that ratio is diminished practically to nothing by the proof, of long-continued user on the piart of the' holders of the title from, whom he derives his rights.

I am, therefore, of the opinion that this motion to relieve should be denied upon the merits, but there is one more consideration which may be properly adverted to.

Specific performance by action, or through the force of a judicial sale, should not be awarded, - where it is necessary to make a new contract between the parties, by making such performance conditional upon a partial restitution by the vendors, to the vendee. Where, however, substantial justice requires the execution of the purchase, the court has the right to give weight to equitable considerations, and award compensation for diminutions of title or power of enjoyment, which are still not sufficient to prevent a compulsory performance by the vendee. Instances of the application of this principle are here cited. Winne v. Reynolds, 6 Paige Ch. 407, 418; Smyth v. Sturges, 108 N. Y. 495; Kings v. Bardeau, 6 Johns. Ch. 38.

Therefore, while denying the motion of the purchaser to be relieved, the order to be entered may, at his election, reserve an amount of the purchase price to be determined by the. court, and a reference had to ascertain the amount of any expense necessary to remove and repair on account of encroachment. If on such reference it should appear that no change whatever need be made on account of the perfect title by long user, there will probably be no substantial award of damages by way of diminution, and thus a fair illustration exemplified by actual investigation of the want of substance in the encroachment' objections.

Ordered accordingly.