The judgment appealed from decrees a rescission of a contract of purchase and sale of real property and adjudges that the plaintiff, the vendee, have a lien thereon for the amount of his deposit. It is impossible to sustain it in that form. (Davis v. Rosenzweig Realty Co., 192 N. Y. 128.)
The plaintiff’s difficulty results from his attempt in one action to obtain a rescission of the contract for fraud, and a judgment establishing a lien for the amount of his deposit on account of the vendor’s inability to give a good title. The trial court found that the defendant, by certain false and fraudulent representations, *584induced the' plaintiff to enter into the contract, also , that Certain objections to the title, made by the plaintiff, were valid, to wit, (a) that certain unpaid’ water rents were a lien ; (b) that the • premises were incumbered by certain monthly tenancies; (c) that the iprem-' ises were incumbered by rights acquired for the maintenance, of an elevated railroad in. an adjacent street; (d) that" the premises encroached upon the street. : •
■ It would seem to be a sufficient answer to the objections to the title that the plaintiff testified that lié objected to taking titile sat the "time of closing solely because the representations upon which he relied ill making the contract were untrue. It is quite plain.tljat the plaintiff’s counsel, at the time of closing, made all the technical objections to the title'wliich lie" could think of for the sole purpose of. laying a foundation for a lawsuit. Moreover, it is undisputed that the defendant was willing to pay the unpaid water fBrilts; and it can easily be inferred that the plaintiff knew of the presence, of the elevated railroad in front of "the premises and of the' isti-called monthly tenancies. To show fraud he relies upon representations of the amount of rentals received. The only evidence to shbw the street encroachments xyas a paper purporting to be a survey made by a city surveyor, but no attempt was made to lay any foundation for its receipt in evidence, and proper objection and exception xvere taken to the admission of it.
In view of the state of the record thus outlined we Iiave no alternative for the granting of a new"trial. ' '
The judgment should be reversed and a new trial granted, with costs to abide the final award- of costs. '
Ingbáham, P. J., McLaughlin, Laugi-ilin and Dowling, JJ., concurred. . .
Judgment reversed, nexv; trial ordered, costs, to abide event.