The Myrtle Realty Company, Appellant, v. John Christian Kalter and Theresia Kalter, Respondents.
Second Department,
March 12, 1909.
Beal property — vendor and purchaser — specific performance — conveyance by description agreed upon.
Where a contract for the sale of lands, after describing the premises by metes and bounds, states that they are known as lots having certain numbers on a certain map, the vendor sued for specific performance will be required to state the lot numbers as part of the description in the deed.
Appeal by the plaintiff, The Myrtle Realty Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 18th day of June, 1908, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits, and directing the specific performance of a contract as claimed by the defendants and set forth in the answer.
Suit by the seller for specific performance of a contract for the sale of real estate. The lot is described in the contract as follows :
“ Beginning at a point on the southerly side of Edsall Avenue distant one hundred (100) feet westerly from the southwesterly corner of Edsall and Anthon Avenues; running thence southerly parallel with Anthon Avenue one hundred, and ninety-seven one-thousandths (100 97/1000) feet; thence westerly parallel with Edsall Avenue forty (40) feet; thence northerly again parallel with Anthon Avenue one hundred, and ninety-seven one-thousandths (100 97/1000) feet to the southerly side of Edsall Avenue, and thence easterly along the same, forty (40) feet to the point or place of beginning; being known as Lots 14 and 15 in Block 3 on map of property belonging to the Myrtle Realty Company at Ridgewood”.
Robert H. Wilson, for the appellant.
H. C. Underhill, for the respondents.
Gaynor, J.:
The plaintiff tendered a deed containing the description contained in the contract, except that it omitted therefrom the words at the *282.end thereof, “ being known as Lots 14 and 15 in Block 3 on map of property belonging to the Myrtle Realty Company at Ridgewood and refused to put them in. The defendant refused to accept the said deed. These words are in common use out of reasonable caution and sometimes serve a material purpose. Without mentioning anything else, the street corner point, for instance^ from which the starting point.is declared in the description to be 100 feet distant, may be different on the map to that apparently established by physical appearances, or established by mistake by the surveyor. If such an error should develop, and- a controversy about a boundary-line arise, it might be useful for the defendant to have the description in his deed contain the number of the lots intended to be conveyed. ' It should not be decided now that the reference to the lot numbers can never be of advantage to the defendant. We should •not try to foresee what may happen or be discovered in the future. The defendant is entitled to have these precautionary and proper words- of description in his deed, for such is his contract. The case of Moser v. Cochrane (107 N. Y. 35) is not in point. There the boundaries on each side of the lot were in terms the walls of other houses, so that a mistake or dispute was impossible.
The judgment should be affirmed.
Woodward, Jenks, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.