Opinion
November 6, 1961
In an action by a vendee against the vendor to compel specific performance of a contract for the purchase and sale of real estate, and to compel reformation and correction of the deed delivered pursuant to such contract so that the deed shall describe and convey an additional 10 feet of land adjoining on the south the land previously conveyed, plaintiff appeals from a judgment of the Supreme Court, Suffolk County, entered July 11, 1960, after a nonjury trial, dismissing the complaint upon the merits. Judgment reversed, on the law and the facts, without costs, and judgment directed in favor of the plaintiff for the relief demanded in the complaint. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. Special Term found, and the record clearly substantiates, that in the contract the property was described as the improved plot known as "The Annex." It was not disputed that this appellation referred to a certain parcel owned by the defendant vendor. In purported compliance with the contract, the vendor delivered a full covenant and warranty deed which conveyed lots 959 and 960 as defined on a specified map. Adjoining property, sufficient to satisfy the demand in the complaint, was retained by the vendor. The building, on the conveyed premises, encroaches about 1.75 feet on such retained land of the vendor. The conveyance under this deed created a violation of the local zoning ordinance which requires an eight-foot side yard between the building and the lot line. The contract and deed made the sale and conveyance, respectively, subject to zoning ordinances "not violated by existing structures" and "which do not render the title unmarketable." Hence, it is apparent that the parties intended that sufficient land be included, in the sale of "The Annex," to conform to the zoning ordinance. To effectuate that intent plaintiff is entitled to the reformation sought ( Hart v. Blabey, 287 N.Y. 257). Nolan, P.J., Beldock, Ughetta, Kleinfeld and Brennan, JJ., concur.