(dissenting):
The plaintiff, Mrs. Nolan, agreed to sell to the defendant Earned, “ the two houses known as Nos. 755- and 757 Dean street, * * * said lots together being 49 ft. 10 in. x 110 feet.” There is no description by metes and bounds or by reference to any map.
When the title was closed, Earned claimed that the westerly wall of No. 755 encroached upon the property on the westerly side owned by one Barr, and by agreement retained $500 of the purchase money until Mrs. Nolan should have obtained a. proper conveyance of the land upon which it was claimed by the defendant Earned that there was an encroachment, and in default of her procuring such conveyance, Earned was to procure the same, charging the expense to the $500 fund in his hands. This agreement was made May 7, 1895. Nothing was done by either party in the way of procuring a release, but this action was .commenced about July, 1895, to set aside the written agreement and secure the repayment of the $500, on the ground that it was falsely represented by Earned that the westerly wall of No. 755 encroached upon the adjoining premises, and that he knew such representation to be false, and that Mrs. Nolan was deceived thereby, and that the building does not encroach upon the Barr lot.
While the learned judge at Special Term does not in express terms decide whether there was or was not an encroachment, he *160inferentially decides that there was none, when he bases the judgment that the agreement be set aside and the $500 returned to the plaintiff “ upon the ground that said agreement was made and executed by mutual mistake, through the assertions, representations and demands made by the defendant Harned.”
The deed to .Mrs, Nolan conveyed a lot 50 feet in width, but there being some question as to an encroachment of the armory on the easterly part of her easterly lot, she conveyed only 49 feet and 10 inches to Harned.
■ The complaint describes the premises as Nos. 199 and 201 on the Van Oleef map, beginning at a point 325 feet'easterly from Under-hill avenue and extending 49 feet 10 inches on Dean street.
The difficulty in the case, and probably the misapprehension of the parties, grises from the fact that different methods of describing .and locating the several lots are used.
The three deeds in the Nolan chain of title bound the lot by a. line commencing at a point'325 feet easterly from Underhill avenue at a time apparently before the laying out of Washington avenue. These deeds were executed in 1873 and 1874. The lots are stated to be 199 and 301 on the Van Oleef map filed in 1841.
The three deeds in the Barr chain of title bound the premises by a line commencing at a point 20 feet from Washington avenue. These, deeds were executed in 1884, 1890 and 1895. The lot is stated to be No. 18 on the assessors’ map.
, Ludlam, the surveyor,. testifies that the entire distance from Underhill avenue, westerly to Grand avenue is 825 feet, and by the Van Oleef. map and the assessors’ map, both in evidence, he demonstrates that lot No. 18 on the assessors’ map, the Barr lot, is identical with lot 197 on the Van Oleef map, and that lot 17, the westerly Nolan lot, is identical "with lot 199 on the Van Oleef map, and that the distance of the westerly line of the Nolan lot is 500 feet from Grand avenue and 45 feet from Washington avenue.
The appellant put in evidence a map made by Mr. Bartlett, a surveyor, on which it is stated that the westerly line of the westerly Nolan house encroaches four inches on the Barr lot, but the map shows the easterly line of the Barr lot to be 45 feet from Washington avenue and '825 feet from Underhill avenue, which is the precise distance of the westerly line of the Nolan lots, and both *161these distances are exactly laid down and confirmed on the Yan Oleef map and the assessors’ map.
Thus it appears that the easterly line of the Barr lot and the westerly line of the westerly Nolan lot are coincident; that Barr has his twenty-five-foot lot, and that his building is within the lines of his own lot, No. 18; that Earned has the adjacent lot, No. 17, and that the westerly wall in question is within the lines of his lot and does not encroach upon .the Barr lot.
In the case of Gallagher v. Quinlan (10 App. Div. 402), recently decided by this court, in a submission of a controversy as to a description of real property in a "will, it was held that where a description is made up of more than one part, and one part of the description is true and another false, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected. In this respect there seems to be no difference between a devise by will and a conveyance by deed.
There was also evidence showing what is termed a practical location of the dividing line by the erection of a fence which stood for over twenty years, by Mrs. Nolan’s first building of a stable up to the dividing line as claimed by the plaintiff, and by her subsequent building of the wall of the present structure in the same position.
I am, therefore, of- opinion that the definite and true description of the two lots as shown by the numbers on the Yan Oleef map- and the assessors’ map, both of which are of record, must prevail,, and it follows that there is no encroachment on the Barr lot, and that the houses Nos. Y55 and 757 are located wholly within the lines of the Nolan lots.
There is no evidence supporting the contention of fraudulent representation on the part of Earned. Whether or not there was a mistake as to the location of this dividing line, and whether the westerly wall of No. 755 actually encroached upon the Barr lot or not, was a question of fact. ■
It is well settled that an action may be maintained for the rescission of a contract in a proper case, even though no action could be had for deceit. In the case of Kountze v. Kennedy (147 N. Y. 124) Judge Andrews says, at page 129 : “ The law affords remedies for the consequences of innocent misrepresentation. A contract *162induced thereby may, in many cases, be avoided, and the equitable powers of courts are frequently interposed for the rescission of contracts or transactions based upon mistake or innocent misrepresentation. While the common-law action of deceit furnishes a remedy for fraud which ought to be preserved, we think it should be kept within its ancient limits, and should not by construction be extended to embrace dealings which, however unfortunate they may have' proved to one of the parties, were not induced by actual intentional fraud on the part of the other.”
The case of Crowe v. Lewin (95 N. Y. 423) was an action to rescind a contract for the exchange of real estate on the ground of fraud. The court refused to find fraud. . The defendants claimed that they intended, to convey land which was actually owned by them, but, by mistake, described in their deed lots which they did not own.' The court held that the plaintiff was entitled to equitable relief whether the case was one of fraud or mistake; that- if it was a mistake the minds of the parties never met and no actual contract was made. ' .
The authorities on this subject are numerous, but enough have been cited to justify the court below in setting aside the contract on the ground on which its judgment is based, viz., mutual mistake through the representations of the defendant Earned.
If it be said that by the agreement the appellant had six months in which, if the plaintiff failed to procure- a -deed, he had the right to procure it himself, and that this action is premature and cannot be maintained till the expiration of that time, the answer is plain that it was not only the right but also the duty of the plaintiff to promptly disavow the contract as soon as the falsity of the representation was discovered.
The judgment should, therefore, be affirmed, without costs.
Judgment reversed and- new trial granted, costs to abide the event.