I dissent and vote for reversal. The action rests upon the breach of the contract in that on the law day of the contract the defendant did not furnish a marketable title. The plaintiff was not bound to establish on this trial that the title is not good, but only that on the law day the title was unmarketable. In Moore v. Williams (115 N. Y. 586, 596) the court, per Earl, J., say in reference to the opinion of Peckham, J., in Methodist Episcopal Church Home v. Thompson (108 N. Y. 618): “ ‘ We disagree with the court at General Term upon the necessity, in such a case as this, of showing that the title is absolutely bad. We think that if there were a reasonable doubt as to the vendor’s title, such as to affect the value of the property and to interfere with the sale of the land to a reasonable purchaser, the plaintiff’s cause of action would be sustained.’ While what was thus said was not necessary to the decision of that case, it is more than a mere dictum. The opinion concurred in by the entire court was written to set right what was deemed an erroneous view of the law taken in the court below, and which might otherwise have been supposed, from the opinion or the judgment, to have received the approval of this court.” The issue is, was the title as furnished *42on that day free from reasonable doubt? (Kilpatrick v. Barron, 125 N. Y. 751, 755. See, too, Brokaw v. Duffy, 165 id. 399; Simis v. McElroy, 12 App. Div. 434.) It seems to me that the title was not free from such doubt. Indeed, the opinions of the court at trial, and of this court, indicate this circumstance. In Todd v. Union Dime Savings Institution (128 N. Y. 639) the court say: “ He may claim a marketable title, and that means a title which a reasonable purchaser, well informed as to the facts and their legal bearings, willing and anxious to perform his contract, would, in the exercise of that prudence which business men ordinarily bring to bear upon such transactions, be willing to accept and ought to accept.” In Parmly v. Head (33 Ill. App. 137): “A purchaser is entitled to a merchantable title, a marketable title — such a one as will bring in the market as high a price with, as without the objection. (Parker v. Porter, 11 Ill. App. 605; Brown v. Cannon, 5 Gilm. 174.)” (See, too, Vought v. Williams, 120 N. Y. 257.)
Andrews, J., for the court in Fleming v. Burnham (100 N. Y. 1, 9), says: “The objection may involve a mere question of fact or it may involve a pure question of law upon undisputed facts.” ' (See, too, Landon v. Walmuth, 76 Hun, 271; Marks v. Halligan, 61 App. Div. 179; Bearns v. Mela, 10 N. Y. Supp. 429; Weinstein v. Kratenstein, 150 App. Div. 789; Palmer v. Morrison, 104 N. Y. 132; 1 Sugden Vendors [Perkins’ 8th Am. ed.], 580; Pomeroy Cent. [2d ed.] §§ 203, 204, and cases cited.) Almost all, if not all, of these cases presented questions of law.
The basis of the action is the breach of the contract. (Flickinger v. Glass, 222 N. Y. 408.) Neither party asks for specific performance, and the defendant does not seek any equitable relief. The plaintiff is entitled to succeed unless the court decide that the title was free from reasonable doubt on the law day of the contract. (Zorn v. McParland, 8 Misc. Rep. 126; affd., 11 id. 555; affd., 155 N. Y. 684.) The effect of the decision is that inasmuch as the court arrives at the conclusion that the title is good, the title was marketable upon the law day. But in Blanck v. Sadlier (153 N. Y. 556) it is said: “ And although the title tendered may in fact be good, yet if it is subject to reasonable doubt, depending ujíon the ascer*43tainment of some material fact extrinsic to the record title, to be found by a jury when the question arises, the purchaser in general will not be required to complete the purchase, for he is entitled to a title not only good in fact, but marketable. (Burwell v. Jackson, 9 N. Y. 535; Fleming v. Burnham, 100 id. 1; Moore v. Williams, 115 id. 586; Leake on Con. 831.)” I add that even when an objection presents a question of law it cannot be disposed of by any litigation unless all the parties interested are before the court. (Abbott v. James, 111 N. Y. 676; Simis v. McElroy, 12 App. Div. 434; affd., 160 N. Y. 156.)
Kelly, J., concurs.
Judgment affirmed, without costs.