#### Sidonia Weiss, Plaintiff, *v.*Julius Schweitzer et al., Defendants.

(Supreme Court, New York Special Term,

May, 1905.)

Contract — For sale of real estate — Inability to give marketable title to part — Vendee’s equitable lien for amount paid.

Where defendant contracted to convey to plaintiff a lot of land containing a frontage on Second avenue in the city of New York of forty-two feet six inches, beginning at the northeasterly corner of Second avenue and St. Mark’s place, commonly known as Eighth street, and the buildings on the property intended to be conveyed are thirty-four feet six and one half inches in width on Second avenue, and is unable for want of title in him to convey an open space between the southerly line of the southermost building and the sidewalk of St. Mark’s place, eight feet in width, separated from the sidewalk by a coping or fence, the plaintiff is entitled to recover the amount paid upon the execution of the contract for the sale of said property and to establish and enforce a vendee’s lien therefor.

The most that defendant could convey was title to thirty-four feet six inches with an easement over the eight-foot strip which would permit of its use for courtyard purposes and prevent its use for any other inconsistent purpose.

That plaintiff contracted to take the property “ subject to courtyard restrictions and covenant as to buildings ” necessarily implied that she was to receive title in fee.

A provision in the contract of sale that if defendant could not make marketable title he was to repay the amount paid him by plaintiff without further cost or damage merely limits the amount of a recovery therefor and does not foreclose plaintiff of her right to maintain an equitable lien as vendee.

Action to recover the sum paid upon the execution of a contract for the sale of real estate, and to establish and enforce a vendee’s lien therefor.

A. Cohen, for plaintiff.

M. S. & I. S. Isaacs, for defendants;

Scott, J.

This is an action to recover the sum paid upon the execution of a contract for the sale of real estate and to *298establish and enforce a vendee’s lien therefor. The defendant Schweitzer contracted to convey to plaintiff a plot of .land in the city of Hew York, with the buildings thereon *“*known by the street numbers 132 and 134 Second avenue, being at the northeast corner of Second avenue and St. Mark’s place and containing forty-two feet and six inches in width on the avenue and in the rear, and sixty-eight feet in length on the street and on the northerly side be the same more or less.” The property was to be conveyed “ free from all incumbrances, except court yard restrictions and covenant as to buildings and against nuisances as the same may be contained in deeds of record, if any there be.” The buildings themselves standing on the property intended to be conveyed are thirty-four feet six and one-half inches in width on Second avenue. Between the southerly wall of the southernmost building and the sidewalk of Eighth street or St. Mark’s place is an open space or court yard eight feet in width separated from the sidewalk by a coping or fence. The plaintiff’s refusal to accept the tendered deed is based upon the contention that defendant never acquired and could not convey good title to this eight feet, and consequently that he could not convey a plot of land beginning at the northeast corner of Second avenue and St. Mark’s place, and containing forty-two feet and' six inches in width on the avenue and in the rear. Eighth street between Second and First avenues, was laid out on the Handel map of July 23, 1819, as a street sixty feet in width, and Hicholas William Stuyvesant, the then owner of the property, conveyed to- the city of Hew York the land lying within the boundary of the street as shown on this map. The street was opened and has ever since been worked and maintained by the city as a sixty-foot street. In 1835, the heirs of Hicholas W. Stuyvesant, who had died seized of a tract of land including the property now in question, desired to make partition of his real estate, and to this end caused a map or survey to be made by Samuel S. Doughty, a city surveyor. On this map Eighth street is also designated as St. Mark’s place, and is laid out as a street seventy-six feet in width, including thereby eight feet on either side of Eighth street as shown on the Handel map. *299There is no evidence that this added strip of eight feet was ever accepted or used by the city as a part of the public street. It seems to have been used exclusively for court yard purposes, the building line of the houses being set at the line shown on the Stuyvesant map as the northerly line of St. Mark’s place. The premises in question were designated as lot Ho. 134 on the Stuyvesant map, which is thereon repreSented as containing thirty-four feet six and one-half inches in width on Second avenue, measuring such width from the northerly line of St. Mark’s place as shown on said map, which would make the northerly boundary of said lot. forty-two feet six and one-half inches from the northerly line of Eighth street as shown on the Eandel map. This lot Ho. 134 (with other lots) was conveyed and released, by his coheirs, to Gerard Stuyvesant by its lot number and reference to the Stuyvesant map, but without any description by metes and bounds, courses and distances. Gerard Stuyvesant and his wife in turn conveyed the lot (with others) to Benjamin Bobert Winthrop by its lot number and reference to the Stuyvesant map, but without further description. The lot was subsequently reconveved to Gerard Stuyvesant who owned it at the time of his death. His executors, carrying out the directions of his will, conveyed this lot (with others) to his son Augustus Van Horne Stuyvesant. The deed designates the lot as Ho. 134 on the Hicholas W. Stuyvesant map above referred to, and then proceeds to bound the lot as beginning at the northeasterly corner of Eighth street,'and containing in width on Second avenue thirty-four feet six and one-half inches. Augustus V. H. Stuyvesant conveyed the lot- to Owen McGovern by its lot number (134) and reference to the Stuyvesant map, with a description which begins with the comer formed by the intersection of the easterly line of Second avenue with the northerly line of St. Mark’s place, and states that the lot is thirty-four feet six and one-quarter inches in front on Second avenue. McGovern appeal’s to have divided the property up and built upon it, and the subsequent conveyances omit reference to the Stuyvesant map. The defendant Schweitzer agreed to convey to plaintiff a lot of land .containing a frontage on Second avenue of forty-two feet six *300inches, beginning at the northeasterly corner of Second avenue and St. Mark’s place, which is the name by which Eighth street is commonly known. There is no evidence that he ever acquired title to any property north of the northerly line of the plot known on the Stuyvesant map as No. 134, which on that map is represented as thirty-four feet six and one-half inches. To comply with his contract, therefore, he must be found able' to convey a frontage of forty-two feet six inches from the corner of Eighth street and Second avenue, as shown on the Randel map. In other words, he must be able to convey the eight-foot strip lying between the northerly line of Eighth street as shown on the Randel map, and the northerly line of St. Mark’s place as shown on the Stuyvesant map. I think there can be no question that all that was conveyed by the deeds heretofore mentioned was the land lying within the lines of lot No. 134, as shown on the Stuyvesant map, and that where that lot is described, in the deed to -Augustus V. IT. Stuyvesant and in his deed to McGovern, as Commencing at the northeast corner of Second avenue and Eighth street, or St. Mark’s place, the deeds must be construed as intending, to indicate the corner as shown on the Stuyvesant map, that is, a point eight feet north of the comer as shown on the Randel map. It follows that the title to the fee of the eight-foot strip never passed out of the heirs of Nicholas W. Stuyvesant, and never passed into Owen McGovern. It cannot be successfully contended that title to this strip passed by these several conveyances as an appurtenance, for it is a well-established rale that land not contained within the lines of the grant will not pass as an appurtenance to land. Armstrong v. Du Bois, 90 N. Y. 95; Ogden v. Jennings, 62 id. 526; Woodhull v. Rosenthal, 61 id. 382. Nor can title be traced to the eight-foot strip upon any theory that it had been .dedicated as a street by the filing of the Stuyvesant map, and thus had passed to the successive grantees of lot No. 134, subject to the right of the public to use it, and that that right has been forfeited and surrendered by the neglect of the city to use it for street purposes. There can be no effective dedication of land to the public without acceptance by the public,, and of this there is *301no evidence. Tallmadge v. East River Bank, 26 N. Y. 105; Avery v. N. Y. C. & H. R. R. R. Co., 106 id. 142. I think that it is impossible to find that Schweitzer ever acquired title to the eight-foot strip which he could convey to plaintiff. The most that he obtained or could convey was title to thirty-four feet six inches, with an easement over the eight-foot strip which would permit of its use for court yard purposes and prevent its use for any other inconsistent purpose. Tallmadge v. East River Bank, *supra.*There is a substantial difference between this and what he agreed to convey, even in view of the fact that plaintiff contracted to take the property “ subject to court yard restrictions and covenant as to buildings,” which necessarily implied that she was to receive title in fee. Since it was never within Schweitzer’s power to fulfill his contract no further demand upon him was necessary than that which was made. The provision in the contract that if Schweitzer could not make marketable title he was to repay the $2,000 paid him without further costs or damage, merely limited the damages to be recovered and did not foreclose plaintiff of her right to maintain her equitable vendee’s lien.

There must he judgment for plaintiff, with costs, and an extra allowance of $100.

Judgment for plaintiff, with costs, and extra allowance of $100.