The contract for the sale of the real estate described therein provided among other things: “The title to be given and accepted hereunder shall be such as Lawyers Title Insurance and Trust Company will approve and insure.” It appeared upon the trial that the *278said company refused to approve and insure the title tendéred by defendant and this appeal is from a judgment for the plaintiff in an action brought to recover the amount paid upon the execution of the ■ contract, together with necessary expense incurred in . the examination of the title. . ’-
It is contended on the part of the defendant that the refusal of the insurance company was capricious and unreasonable, that-the title tendered was. marketable, and- that she was, able, ready and willing to give a, marketable title approved and insured by another company. -
The ease turns upon the meaning of the clause in the contract quoted. I think- the plaintiff' had- a right to insist upon a title approved as provided in the contract, and this is not in.conflict with the decision of this court in Downs v, Lehman (123 App. Div. 11), cited by the learned counsel for the. respondent. The same-question was involved in Flanagan v. Fox (6 Misc. Rep. 132), and it was there held, in - a ■ learned and ' well-considered opinion by Mr. Justice Bischoff, that'an action in such circumstances is maintainable,
. The judgment of the Municipal Court should he affirmed, with costs. ' -
Woodward, J.enks, G-aynor and Miller, JJ., concurred.
. Judgment of the Municipal Court affirmed^ with costs.. -