I concur in the affirmance óf the order, The encroachments were insignificant, and, under all the circumstances, did not furnish ground for rejecting the title.. The case is an extraordinary one in many respects — by reason of the size and nature of the property; the knowledge, of the real purchasers of its exact condition, and the satisfactory evidence of adverse possession. Every such case must depend more or less upon its own particular facts, and it Cannot be said here that reasonable doubt was thrown upon the title. In fact the attitude of the respondents appeals much more strongly to a ' court of equity than that of the appellant. The title being free from reasonable doubt, it was proper for the court to allow compensation for the material defects which appeared, and to appoint a referee to determine the amount which should be awarded. This Course was adopted in at least one case in this State (King v. Bardeau, 6 Johns. Ch. 38, 44), and there are numerous other- cases containing dicta that a purchaser may be forced to accept compensation as an indemnity against trivial defects (Smyth v. Sturges, 108 N. Y. 498; Winne' v. Reynolds, 6 Paige, 407; Keating v. Gunther, 10 N. Y. Supp. 734). The cases cited to thé contrary are not in point. (Sternberger v. McGovern, 56 N. Y. 12; Martin v. Colby, 42 Huh, 1; Bonnet v. Babbage, 19 N. Y. Supp. 934; Sabriski v. Veloski, 25 Abb. N. C. 185.) These cases hold that, in the case of a contract for the exchange of real property, if one of the parties is unable to perform in full; he will not be forced to convey what he has and pay damages for the balance' of the property, and that if the vendor in a.contract of sale cannot obtain a conveyance of his wife’s right *423of dower, the vendee may not insist upon a conveyance of the vendor’s own interest and damages for the failure to perform in full.
In all of these cases there was a substantial breach of the contract which would have justified the vendee in rescinding it. The vendor had forfeited all rights under the contract, and the sole question related to the measure of relief which the vendee might obtain. But here the vendors have not forfeited their rights. The defects are not of sufficient substance to justify a rejection of the title, and the court is practically enforcing the agreement in the vendors’ favor. There is no authority holding that in such a case equity may not do full justice by awarding compensation for immaterial defects. The sum reserved is large, but not in proportion to the value of the property; and it is not awarded to the appellant, but simply set apart as a fund out of which-to pay him what, if anything, the referee shall find to be reasonable.
Rumsey and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.