McCarter v. Crawford

• Decision Date: 29 March 1927
• Citation: 245 N.Y. 43,156 N.E. 90
• Parties: McCARTER v. CRAWFORD et al.
• Court: New York Court of Appeals Court of Appeals

245 N.Y. 43

156 N.E. 90

McCARTER

v.CRAWFORD et al.

Court of Appeals of New York.

March 29, 1927.

Action by Marion Walter McCarter against Everitt L. Crawford and another, as executors of the estate of Augustus G. Palmer, deceased. The Trial Term directed verdict for the plaintiff. The Appellate Division, Second Department, affirmed the judgment (217 App. Div. 766, 216 N. Y. S. 867), and granted leave to appeal (219 App. Div. 735,218 N. Y. S. 807).

Judgments of the Appellate Division and the Trial Term reversed, and complaint dismissed.

Vendor and purchaser 135(2)

Purchaser cannot recover initial payment because building encroached on adjoining premises, under contract describing premises ‘subject to facts which survey would show.’ Purchaser could not, in action at law, recover initial payment on ground of unmarketable title, because one of buildings encroached slightly on adjacent premises, where contract described property by metes and bounds, ‘subject to such a state of facts as an accurate survey would show’; such provisions making purchaser's title subordinate to existing facts shown by survey.

Appeal from Supreme Court, Appellate Division, Second department.

John A. Kelly and James G. Affleck, Jr., both of New York City, and Grenville S. Sewall, of Rye, for appellants.

Richmond J. Reese, George W. Files, and George C. Howard, all of New York City, for respondent.

CRANE, J.

On the 3d day of April, 1920, this plaintiff entered into a written contract with Everitt L. Crawford and Mary B. Palmer, as executors of the will of Augustus G. Palmer, deceased, for the purchase of certain property with the buildings thereon erected in the village of Port Chester, town of Rye, county of Westchester, for the sum of $17,000. The description of the property commenced as follows:

‘All that certain piece and parcel of land, with the buildings and improvements thereon erected, situate, lying and being in the village of Port Chester, town of Rye, county of Westchester and state of New York, beginning at the corner formed by the intersection of the easterly line of South Regent street, with the northwesterly line of South Main street, and running thence,’ etc.

Then followed a description of the property by metes and bounds, the last phrase of which read:

‘* * * Containing within said bounds, nine thousand nine hundred and fifty-six ten thousandths of an acre be the same more or less, and being the same premises which were heretofore conveyed by George Quintard Palmer and Edna E. Palmer his wife, to the said Augustus G. Palmer by deed dated, January 24, 1902, and recorded in the office of the register of the county of Westchester on February 1, 1902, in Liber 1605 of Deeds, page 78.’

The contract also contained, following this description, these words, ‘subject to such a state of facts as an accurate survey would show.’ On the property was a residence, a stable, and a carriage house separate and apart from the stable. When the survey was made, it showed that the carriage house extended over the easterly line of the property 2 inches on the north, and a little over 8 inches on the south end of the building. The carriage house was a small structure, setting back in the lot over 275 feet from South Main street. It was near the rear of the premises and between the residence and the stable. In a word, it projected over onto the adjoining property from 2 to 8 inches. The purchaser rejected the title as unmarketable because of this encroachment.

The contract also contained this clause:

‘In the event of the parties of the first part being unable to complete this contract by reason of defects in title, the party of the second part shall have the right to cancel the same, but, in the event of such cancellation, the parties of the first part shall be under no liability to the party of the second part, except to refund that portion of the purchase price already paid, and this contract shall be considered terminated without any right to either party for damages against the other.’

The purchaser, having paid $1,700 upon the signing of the contract, brought this action to recover the amount, because of the encroachment shown by the survey. The courts below have held with her; the Appellate Division, however, permitting an appeal to this court, certifying that in its opinion a question of law was involved which should be reviewed here.

This is an action at law brought by the purchaser to recover upon the strength of her contract, and according...