Fossume v. Requa

• Decision Date: 06 June 1916
• Citation: 218 N.Y. 339,113 N.E. 330
• Parties: FOSSUME et al. v. REQUA.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 339

113 N.E. 330

FOSSUME et al.

v.REQUA.

Court of Appeals of New York.

June 6, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Finn L. Fossume and others against Mark Requa, as executor, etc. From a judgment of the Appellate Division (163 App. Div. 890,147 N. Y. Supp. 1112) affirming a judgment entered upon a verdict directed by the court in favor of the defendant, plaintiffs appeal. Reversed, and new trial granted.

Appeal by the plaintiffs from a judgment of the Supreme Court, Appellate Division, First Department, affirming a judgment entered upon a verdict directed by the court in favor of the defendant.

The plaintiffs seek in this action to recover damages for the failure to carry out a contract to convey real property. The plaintiffs and James M. Requa, the defendant's testator, entered into a contract whereby Requa agreed to convey to the plaintiffs, for the sum of $56,913.50, a certain farm of 162 acres in the town of Piscataway, Middlesex county, N. J. The plaintiffs paid to Requa $5,000 in cash on the execution of the contract, and agreed to pay $16,913.50 in cash and $35,000 by a mortgage on the property to be conveyed at the time fixed for the execution and delivery of the deed. By the terms of the contract Requa agreed to execute and deliver to the plaintiffs ‘a good and sufficient deed which shall contain the usual full covenants and warranty for the conveying and assuring to them the fee simple of the said premises.’

The plaintiffs learned shortly after making the contract that the property purchased was incumbered by a grant made by Requa under seal, and recorded in the county clerk's office, as follows:

‘In consideration of the sum of one (1) dollar cash in hand paid to me by the New York and New Jersey Telephone Company, the receipt whereof is hereby acknowledged, I hereby grant to the said company, its successors and assigns, the right to erect, maintain, and renew its poles, wires, and fixtures in front of and abutting my property on the highway, Washington avenue, leading from Water F. to Township Line, in the township of Piscataway, county of Middlesex, state of New Jersey. Dec. 18/99.’

On the day subsequently fixed for closing the contract the plaintiffs refused to accept a deed tendered by Requa of the lands described in the agreement of sale, because of the outstanding right of the New York & New Jersey Telephone Company to maintain its telephone poles and wires over the premises, and they demanded the return of the $5,000 paid by them as part of the purchase price of the farm, and payment of certain expenses incurred in the examination of title, and also their loss sustained by reason of the failure of Requa to perform the agreement, amounting altogether to $16,000.Walter Carroll Low, of New York City, for appellants.

Theodore W. Morris, Jr., of New York City, for respondent.

CUDDEBACK, J.

(after stating the facts as above).

[1] The provisions of the contract for the execution and delivery of ‘a good and sufficient deed which shall contain the usual full covenants and warranty for the conveying and assuring to them (plaintiffs) the fee simple of the said premises' required a conveyance free from incumbrance. Wallach v. Riverside Bank, 206 N. Y. 434, 100 N. E. 50.

[2] The existence of a public highway over land agreed to be conveyed is not an incumbrance of which the buyer may complain. Neither is the existence in the highway of sewers, water mains, and gas pipes which are regarded as incidental to the use of the land for highway purposes such an incumbrance. But it is different with regard to telegraph and telephone wires and poles. They are not placed in the highway for highway purposes. They constitute an additional burden upon the fee, and their presence is a violation of a covenant for conveyance in fee. Osborne v. Auburn Tel. Co., 189 N. Y. 393, 82 N. E. 428;Palmer v. Larchmont Elec. Co., 158 N. Y. 231, 52 N. E. 1092,43 L. R. A. 672;Matter of Rapid Transit R. R. Com'rs, 197 N. Y. 81, 90 N. E. 456,18 Ann. Cas. 366.

[3][4] In this case it is not seriously disputed that the grant to the New York & New Jersey Telephone Company to maintain its poles and wires in Washington avenue was an incumbrance upon the lands to be conveyed, but the defendant's argument is that it was an unsubstantial incumbrance, and under the principle, ‘De minimis non curat lex,’ the plaintiffs were required to accept the title tendered them. The learned judge at the Trial Term said, ‘It cannot be successfully contended that the incumbrance in question seriously affected the use or value of the premises,’ and he rendered judgment for the defendant, relying upon the decision in the case of Callanan v. Keeseville, A. C. & L. C. R. R. Co., 199 N. Y. 268, 92 N. E. 747. That was an action in equity for the rescission of a contract, and the general rule is that rescission will not...