The parties entered into a contract for the sale by the defendant, and the purchase by the plaintiffs, of certain real estate in the city of New York. At the time fixed for .the closing of the transaction by the delivery of a deed of conveyance, the plaintiffs claimed that the defendant was unable to convey a good title and this action was brought to compel him to perform his contract, or in case he was unable to do so, to recover the amount paid and the expenses incurred in searching the title.
The trial court found that the plaintiffs were not justified in refusing the title offered and directed specific performance, and from the judgment entered to that effect the plaintiffs, appeal.
The premises described in the contract were part of a tract of land conveyed in 1896 to one Olsson. This tract-was situate on the northwesterly side of Eagle avenue, having a frontage of 75 feet, commencing at a point 210 feet northeasterly from the intersection of that side of Eagle avenue with the northeasterly side of land occupied by the Morrisania Branch railroad, and being 120 feet deep. It was equivalent to three lots 25 by 120 feet, and the contract between the parties describes the center lot.
At the trial it appeared that Olsson erected substantially upon ■- *215this lot a five-story briclt building with party walls some sixteen iiiches thick, and in i898 he conveyed the lot to one Brunjes, describing it by metes and bounds as commencing at a point 235 feet distant from the intersection of Eagle avenue with the land occupied by the railroad, “the northerly and southerly boundary lines of said lot running through party walls.” In 1906 Brunjes conveyed the lot to the. defendant by a deed describing the property in the same way, which deed also referred to an annexed survey of the premises made by a city surveyor named Mapes. This survey showed the northerly and southerly boundary lines as running through practically the center of the party walls on each side of the building. The defendant contracted to convey to the plain tiffs this lot, described by metes a2id bounds,' “the northerly and southerly boundary lines of said lot running through party walls, being the same premises shown on a survey attached to the deed of Brunjes to ” the defendant.
The plaintiffs’ objection to the title is based upon a survey made by one Hollerith, which shows that the southerly face of the southerly party wall is S02iie five inches north of tlie southerly lot line as fixed by metes and bounds, and that the northerly face of the nortlle2‘ly party wal1 is from three feet one inch to three feet six inches north of the northerly line. This survey differed from the Mapes survey, both in the location of the lot lines and in the location of the party walls. According to this survey neither of these lines run through either party wall at all, and the building encroaches some three feet six inches on the premises adjoining to the north.
The party walls being sixteen inches thick, it is over twenty-six feet wide between the center of the party walls.
If the survey made by Hollerith is correct in these particulars—* which the court found it was at plaintiffs’ request — the defendant certainly could not convey a marketable title: Olsson had appai’ently intended to erect the building exactly on this center lot, so that the center lines of the party walls should cohrcide with, the lot lines, a2id it may be assmned that he and his successors in title supposed he had done so, and that the location of the building and the lot lines were as shown by the Mapes survey, because his widow, to whom he devised all his property, purported to convey to one *216Kirschoff the lot immediately adjoining on the-north, as shown, by such survey. It seems to be conceded that at the time of the conveyance to Brunjes Olsson then owned the lots adjoining on the north and south. The trial court was of the opinion that, as the building was twenty-five feet wide between the center lines of the party walls — which was an erroneous assumption if the Hollerith survey was correct — and since it was the evident intention of Olsson and all the other parties to convey the lot covered by the building, the northerly and southerly boundary lines were fixed in both the contract and deeds by these party walls as monuments, and that the erroneous description by metes and bounds might, therefore, be rejected or disregarded.
If the property had been described as commencing at a point 235 from the intersection of Eagle avenue with the land of the railroad “ on the center line of a party wall,” etc., this might be true, but there is a marked distinction between a point thus located and a line definitely fixed by courses and distances with the incidental statement that it runs through the center of a party wall. This was pointed out in the case of Smyth v. McCool (22 Hun, 595), in which -it was held that where property was described by metes and bounds, with the incidental statement that two of the boundary lines ran for part of their distance through the center of .party walls, and the lines as fixed by metes and bound's varied some five inches from the center lines, the title to the center of the walls was so doubtful that a purchaser should not. be compelled to accept it. The same distinction was recognized in Muhlker v. Ruppert (124 N. Y. 627).
In the present case, according to the Hollerith survey, there is a variation of over a foot between the lot lines and the center lines of the party walls, and. if the incidental reference to' the party walls could be considered as controlling the definite description by metes and bounds, no point within the party walls is specified. The deeds and contract do not attempt to locate the lines in the center of the party walls. They are located by metes and bounds, and lines' anywhere within the sixteen-inch party walls would satisfy the description. ■ If the lines actually fixed by metes and bounds could be moved at all, it might just as well be contended that they should be moved only enough to place them just within the party walls so as *217to satisfy the description as to place them in the center of the party walls.
Not only this, but the building, according to the findings, is something over twenty-six feet wide, and if this be true, then it is impossible to determine or fix the lines of a twenty-five-foot lot within the party walls, certainly not with anything like accuracy. It would, therefore, seem that the defendant’s title to three inches or more of the lot upon which the building stands is exceedingly doubtful, and for that reason the plaintiffs were, justified in ref using to accept the deed.
It is urged that Olsson conveyed, and the defendant has. good title, to the lot described by metes and bounds, and that since the encroachment of the building is upon a lot owned by Olsson at the time he conveyed, such encroachment is not a defect because his grantors would have an easement so long as the party wall stood. The plaintiffs, however, contracted to purchase the premises shown on the Mapes survey, and oh that survey the lot lines were fixed within the party walls — which is not true if the Hollerith survey is correct. Not only this, but if the lot described by metes-and bounds alone is considered, it is quite evident that the defendant’s title to at least the five-inch strip between the southerly party wall and the lot line is exceedingly doubtful.
In the present state of the record, therefore, the plaintiffs were justified in refusing to accept a deed, and if the Hollerith survey correctly locates the building and the lot lines, it is difficult to see how the defendant, without obtaining additional deeds, can establish his title to the property contracted to be conveyed. Hollerith testified, however, that he might have made an error in locating the intersection of the northwesterly side of Eagle avenue with the land of the railroad. It appears that One Hundred and Forty-ninth street has been opened just north of the railroad, and property in that- vicinity has for some years been located by the intersection of Eagle avenue and One Hundred and Forty ninth street on the south and Eagle avenue and Westchester avenue on the north. Mapes testified that the point of beginning of the lot could be located only by working back from Westchester avenue, which, he had done. It may be that upon a new trial defendant can show that he .has good title, but upon the record now before us there is certainly *218so much doubt about, it that a purchaser ought not to be- compelled to take it. 1 ‘ -
The judgment appealed from, therefore^ is reversed .and a new trial ordered, with costs- to appellants to abide event.
Ingraham, La-ughlin, Houghton and Scott, JJ., concurred.
Judgment reversed,.new trial ordered, costs to.appellants to abide event,