Sorosis Building Corp. v. Prolay Realty Corp.

McAvoy, J.

Plaintiff sought to recover $2,500 paid by it to the defendant as a deposit on a contract for the purchase of real property, plus $500 as alleged expenses for the examination of the title, and plaintiff also prayed that a vendee’s lien therefor be declared in its favor.

The answer admits the payment of $2,500; alleges the tendering of a deed, the rejection by the plaintiff and demands specific performance.

Under the contract the defendant agreed to convey by full covenant and warranty deed the fee simple of the premises free from all incumbrances except as therein expressly provided. There is nothing said in the contract about any rights or easements in the highway adjoining the premises. An examination of the title disclosed the following reservation in two prior conveyances: “ Reserving to the party of the first part (Farmers’ Loan and. Trust Company), its successors and assigns, rights of way in and over avenues, streets or roads in front of the said premises, with rights to install, maintain and connect sewers, gas, water and electric pipes, conduits and wires on such avenues, streets and roads which are not legally opened or vested.”

Plaintiff contends that this easement creates an incumbrance which makes the title unmarketable.

Defendant contends that the easement does not affect the marketability of the title, does not constitute a valid objection to the title, and under the terms of the contract the plaintiff was not within its rights in rejecting title because of the existence of the said reservation of an easement.

It is expressly stated in the contract that the seller will convey all his right, title and interest to the center of the street. Plaintiff is, therefore, entitled to a deed conveying to it the fee of the street abutting the premises to the center line thereof, subject to a public easement. Electric pipes, conduits and wires on the streets are not like sewers and water mains erected for highway purposes. The rights reserved by the prior deed created an easement which was not a public easement and which constituted an additional servitude upon the fee. It was reserved by a private person, the Farmers’ Loan and Trust Company. There is nothing to indicate that this reservation of an easement was for highway purposes, Under this easement the land could be used for such purposes as the owner determined.

We think this easement is a defect in the title entitling the plaintiff to recover as damages the amount paid on the contract and the reasonable expenses incurred in an examination of the title to the property.

*685The order denying defendant’s motion for judgment on the pleadings and for judgment on the counterclaim for specific performance should be affirmed, with ten dollars costs and disbursements.

Dowling, P. J., and Martin, J., concur; Finch and O’Malley, JJ., dissent.