Opinion
July, 1904.
Richard Cohn, for the appellant.
Jacob W. Kahn, for the respondents.
The judgment awards to the plaintiffs the amount of a deposit made by them with the defendant under a contract for the sale of real estate, the title of which they rejected as unmarketable. It also includes certain expenses incident to the examination of the title. The only objection to the title was the fact that the building on the property encroached three inches on the adjoining land, and it is conceded by the appellant that if this constituted a valid ground for the plaintiffs' refusal to accept a conveyance, the judgment appealed from is proper.
There is no building on the adjoining property abutting upon the defendant's encroaching wall, and the decision was rendered upon the theory that the provisions of section 1499 of the Code of Civil Procedure have, therefore, no application to the case. The decision seems to be correct. In the section of the Code of Civil Procedure referred to it is provided that an action to recover possession of real property cannot be maintained "where in any city the real property consist of a strip of land not exceeding six inches in width, upon which there stands the exterior wall of a building erected partly upon said strip and partly upon the adjoining lot, and a building has been erected upon land of the plaintiff abutting on the said wall, unless said action be commenced within one year after the completion of the erection of such wall or within one year after the first day of September, eighteen hundred and ninety-eight." The section further provides that an action for damages may be maintained if commenced within the further period of one year, and that upon the satisfaction of a judgment recovered in such action the plaintiff's title to the strip of land upon which said wall encroaches shall be transferred to and vest in the defendant, but that if neither an action of ejectment or for damages be brought within the period limited, the person in possession of such land shall be deemed to have an easement in the strip of land so long as the wall partly erected thereon shall stand.
The premises which the defendant contracted to sell to the plaintiffs are known as No. 146 Lynch street in the borough of Brooklyn. The three-inch encroachment is on the lot adjoining on the west. There is a building on the westerly end of that lot fronting on Marcy avenue, but a considerable vacant space exists between the rear or easterly end of that building and the defendant's encroaching wall. Neither action specified in section 1499 of the Code of Civil Procedure ( supra) has been brought, and the time therefor had expired at the time set by the parties to this action for the closing of title under their contract.
The appellant's contention is that the provisions of the Code of Civil Procedure which I have cited relate to the case of an encroaching wall upon which the adjoining land abuts equally as to the case where a building upon the adjoining land abuts on the encroaching wall. I think, however, the statute only applies to a case where the owners of both pieces of land have built buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the dividing boundary. This construction is in accordance with the obvious meaning of the language used, viz., where "a building has been erected * * * abutting on" the encroaching wall. This appears to have been the view taken by the Appellate Division in the first department in Volz v. Steiner ( 67 App. Div. 504), Mr. Justice INGRAHAM writing (p. 512) that "where there is such an encroachment, and the owner of the lot upon which it exists has, by erecting a building upon his lot, practically located the line between the two pieces of land, in such case the owner of the land encroached upon must commence an action within one year after the encroachment, or lose his right to maintain such an action."
In that case it was held that the Code provisions in question are constitutional. In the view taken herein it is unnecessary to pass upon that question. The objection to the title was a valid one and justified the respondents in refusing to complete the purchase. ( Wilhelm v. Federgreen, 2 App. Div. 483; affd. on opinion below, 157 N.Y. 713.) It follows that the judgment should be affirmed.
All concurred.
Judgment of the Municipal Court affirmed, with costs.