Boecher v. Borth

• Decision Date: 08 January 1976
• Citation: 51 A.D.2d 598,377 N.Y.S.2d 781
• Parties: Walter BOECHER, Appellant, v. Donald BORTH, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 781

377 N.Y.S.2d 781

51 A.D.2d 598

Walter BOECHER, Appellant, v. Donald BORTH, Respondent.

Supreme Court, Appellate Division, Third Department.

Jan. 8, 1976.

Caffry, Pontiff, Stewart, Rhodes & Judge, Glens Falls (Robert S. McMillen, Glens Falls, of counsel), for appellant.

Bouck, Holloway & Kiernan, Albany (Raymond S. Zierak, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and SWEENEY, KANE, LARKIN and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from an order of the County Court, entered February 7, 1975 in Warren County, which, following a submission of controversy pursuant to CPLR 3222, dismissed the complaint as barred by the Statute of Limitations.

The agreed facts are as follows. In 1965, in connection with a proposed purchase of land in the Town of Queensbury, Warren County, plaintiff retained the defendant attorney to represent him. Under the terms and provisions of the retainer agreement, defendant was required to examine into the title of the premises to be purchased and to establish that the title was marketable and was free and clear of any liens or encumbrances which would affect marketability. Defendant was further required not to approve such title and proceed to closing until marketability of the title had been established. Prior to September 17, 1965, defendant advised plaintiff that such title was free and clear of any liens, encumbrances or defect which would affect its marketability, and plaintiff, in reliance thereon, purchased same on September 17, 1965. In 1970 plaintiff contracted to sell the property, but the title was determined to be unmarketable by the purchaser's attorneys. In order to conclude the sale plaintiff was required by the purchaser's attorneys to obtain a quitclaim deed to a remainder interest for the sum of $2,400 on November 9, 1970. This action was commenced on April 5, 1971.

The trial court dismissed the complaint, holding that the action was barred by the three-year malpractice Statute of Limitations. We do not agree. Upon an examination of the submitted facts, under the terms of the retainer agreement, there was an express promise by defendant to achieve the specific result of establishing marketability since anything less would defeat the purpose of the retainer agreement. Under these unique stipulated facts and circumstances, the six-year contract Statute of Limitations applies. (Robins v. Finestone, 308 N.Y. 543, 127 N.E.2d 330; Glens Falls Ins. Co. v. Reynolds, 3 A.D.2d 686, 159 N.Y.S.2d 95.) Plaintiff's action, therefore, was timely commenced.

It would serve no purpose to remand for a decision on the merits, since CPLR 3222 permits the case on agreed facts to be submitted originally to this Court. In order to recover, plaintiff must establish that the title was, in fact, unmarketable. Title is unmarketable where it is of such a character as to expose the purchaser to the hazard of litigation and where there are outstanding possible interests in third persons. (62 N.Y.Jur., Vendor and Purchaser, § 48; 65 A.L.R.3d 450, 456; 57 A.L.R. 1253, 1283.) The statement of agreed facts set forth the will of one Codner who bequeathed the balance of his property (of which the subject property was a part) to his wife for life, with remainder, one-third to his son Harry absolutely, one-third to his daughter Mabel absolutely and one-third to his daughter Lavina 'for and during the natural life, she to have the use and income therefrom for her care, comfort and support, and as much of the principal as may be necessary with the understanding that no part of same shall be used in any manner for the case (sic) and support of (her husband)', and at her death whatever remained was given to her children absolutely. Codner died in 1934 and his wife in 1937. By a quitclaim deed Mabel and Lavina conveyed their interests in the property to their brother Harry and his wife in May of 1938. Subsequently, in 1944, Harry, as surviving executor of Codner's estate, conveyed the same property by an executor's deed to himself individually and his wife for $1. Later, in 1948, the Codners conveyed same to plaintiff's grantors, who in turn conveyed the subject property to plaintiff in 1965.

The basic claim of unmarketability is that Lavina's surviving child, Stanley Coon, had a remainder interest in Lavina's share. Defendant asserts that Lavina's ability to consume the principal under her father's will gave her absolute power of disposition whereby her conveyance to Harry and his wife cut...