#### The Westchester & Bronx Realty & Development Company, Respondent, *v.*Benjamin Morris Whitlock, Cornelius Howard Whitlock and Graham Brush, as Executors of the Last Will and Testament of Amelia Mott Graham, Deceased, Appellants.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Contracts — deposit on contract of sale — evidence — objection to title — encroachment on land.

Where the complaint, in an action to recover a deposit on a contract for *the*sale of real estate, alleges that plaintiffs assignor was ready, willing and duly offered to accept and take *490a deed in fee simple to the premises, hut refused to accept a deed tendered by defendants on the ground that it would not and did not convey said premises free of all incumbrances, as provided by the contract, the exclusion of evidence that plaintiff’s assignor did not have sufficient cash to pay the balance of the purchase price; that it never offered to perform the contract on its part and was unable so to do, is error calling for the reversal of a judgment entered on a verdict in plaintiff’s favor.

Where an objection to the title on the ground of an encroachment by a wooden fence and an adjoining two-story frame building was not raised until after plaintiff’s assignor had refused the title and after his default had been noticed, the objection is not available to defeat defendants’ right to retain the forefeited deposit, it not appearing that it was beyond the power of defendants to remove said encroachment.

Appeal by the defendants from a judgment of the City Court of the city of New York entered in favor of the plaintiff upon the verdict of a jury and also from an order denying a motion for a new trial.

Hasten *&*Nichols (Knowlton Durham, of counsel), for appellants.

Herman Hoffman (Alexander Thain, of counsel), for respondent.

Guy, J.

This is an action to recover a deposit of $2,500 on a contract for the sale of real estate, in performance of which contract it is alleged that plaintiff’s assignor was ready, willing and duly offered to accept and take a deed in fee simple to the premises, but refused to accept a deed tendered to him by defendants because said deed as tendered would not and did not convey said premises free from all incumbrances, as by said contract provided.

There is no proof of any tender or readiness to perform on the part of the plaintiff’s assignor. Defendants tendered a deed and noted plaintiff’s default on *491the contract. Defendants sought to introduce evidence that plaintiff’s assignor did not have the $30,500 in cash required to be paid as the balance of the purchase price; that he never offered performance and was unable to perform, which evidence was excluded and defendants excepted. There is proof of an encroachment by a wooden fence and by an adjoining two-story frame building, but this objection was not raised until after plaintiff’s assignor had refused to take title and after his default had been noted. The defendants’ proof, to the effect that plaintiff’s assignor at the time of the default stated that he refused to take title because he had been unable to negotiate a loan and could not raise the money, was not contradicted, nor was the assignor’s admission of his default under the contract explained.

It was error to exclude proof that plaintiff’s assignor was unable to perform. To put the defendants in default it was necessary either that plaintiff’s assignor should made a tender which they refused, or else that there was some incumbrance on the property which could not be removed. Alpern v. Farrell, 133 App. Div. 278, 280, 281; Ziehen v. Smith, 148 N. Y. 558. New objections to the title made after the default are not available to defeat the defendants ’ right to retain a forfeited deposit, unless it is shown that the objection could not have been obviated by the seller. Higgins v. Eagleton, 155 N. Y. 466, 472-474. It does not appear that it was beyond the power of the defendants to remove the encroachments of which plaintiff now complains.

Gerard, J., concurs in result; Page, J., concurs on the first ground stated.

Judgment reversed and a new trial ordered, with costs to appellants to abide the event.