The relief sought in this action was the specific performance of a land contract, with deductions from the purchase price for .alleged violation filed by' the department of health. or if the defendant could not convey a good 'title in accordance with her contract, for judgment for a payment of $100-made upon the contract at the time of its execution and $100 expenses incurred in examination of the title and a survey of the premises.
•The contract provides that- the defendant would convey the premises known as No. 375 Baltic street, Brooklyn^ its'dimensions being 25 by 100 feet, “ free and clear "of incumbrance and violations.” The learned trial justice found, upon undisputed evidence, that on the day fixed for the passing of title the plaintiff informed the defendant that the records of the department of -health of the city of New York disclosed certain violations existing against the' premises and that there were- encroachments thereon, and refused to accept the title tendered on those grounds. He found, however, as matter of law, that such encroachments did not constitute an incumbrance or defect of title and that the contract of sale was not sufficient to cover the violation filed by the department of health, and. that while the reasonable cost and expense of complying with the requirements of such department was $475, refused to make an allowance for the same and directed the delivery of a deed upon payment of the remainder of the full contract price, and that if the plaintiff failed to accept such deed and make such payment on a day specified, his complaint be dismissed.
In the view we take of the case, it is unnecessary to consider the alleged violations or their effect upon the legal lights of the parties. It is undisputed that a . brick building on adjoining property encroaches upon the premises agreed to be conveyed three inches at its front on the street line and one and one-half inches at its rear, a distance from the street of thirty-six feet; that the survey exhibited to defendant upon which plaintiff based, in part,.his refusal to accept the title disclosed this fact. .We think this rendered the . *274title unmarketable and justified the plaintiff in rejecting the title. (Klim v. Sachs, 102 App. Div. 44.)
The judgment must be reversed and a new trial granted, costs to abide the event.
Jenks and Hooker, JJ., concurred; Gaynor, J., read for affirmance, with whom Woodward, J., concurred.