Since it appears from the pleadings that only an issue of law is in controversy between the parties, the defendant is entitled to judgment upon motion. Any nominal denials are offset by admissions in other parts of the pleadings. The defendant was careful to limit its. conveyance of the highway in front of its property so that its contract should cover only " all right, title and interest of the seller, of, in and to any land lying in the bed of any street, road or avenue, opened or proposed, in front of or adjoining said premises, to the center line thereof; * * * and
the seller will execute and deliver to the purchaser, on closing of title, or thereafter, on demand, all proper instruments for the conveyance of such title * * *.” (Italics not in original.) The seller complied with its contract when it tendered a deed conveying only such title as it had, be that little or great, because that was all it contracted to do. Such an undertaking on behalf of the seller made due allowance not only for a public easement of passage and repassage, but also for all other easements and rights which existed in such highway (save only such rights as might be cut off by a failure to record), including, of course, the duly recorded easements to install, maintain and connect sewers, gas, water and electric pipes, conduits and wires.
The order appealed from should be reversed upon the law and the motion of defendant, appellant, for judgment on the pleadings should be granted.
O’Malley, J., concurs.
Order affirmed, with ten dollars costs and disbursements.