Fossume v. . Requa

Cuddeback, J. The provisions of the contract for the execution and delivery of “a good and sufficient deed which shall contain the usual full covenants and warranty for the conveying and assuring to them (plaintiffs) the fee simple of the said premises ” required a conveyance free from incumbrance. (Wallach v. Riverside Bank, 206 N. Y. 434.) The existence of a public highway over land agreed to be conveyed is not an incumbrance of 'which the buyer may complain. Neither is the existence in the highway of sewers, water mains and gas pipes which are regarded as incidental to the use of the .land for highway purposes, such an incumbrance. But it is different with regard to telegraph and telephone wires and poles.' They are not placed in the highway for highway purposes. They constitute an additional burden upon the fee and their presence is a violation of a covenant for conveyance in fee. (Osborne v. Auburn Tel. Co., 189 N. Y. 393; Palmer v. *343 Larchmont Elec. Co., 158 N. Y. 231; Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81.) In this case it is not seriously disputed that the grant to the New York and New Jersey Telephone Company to maintain its poles and wires in Washington avenue was an incumbrance upon the lands to be conveyed, but the defendant’s argument is that it was an unsubstantial incumbrance, and under the principle de minimis non curat lex the plaintiffs were required to accept the title tendered them. The learned judge at the Trial Term said: “ It cannot be successfully contended that the incumbrance in question seriously affected the use or value of the premises,” and he rendered judgment for the defendant, relying upon the decision in the case of Callanan v. Keeseville, A. C. & L. C. R. R. Co. (199 N. Y. 268). That was an action in equity for the rescission of a contract, and the general rule is that rescission will not be permitted for a slight or casual breach of a contract, but only for such as are so substantial and fundamental as to defeat the object of ,the parties making the agreement. But we have here a very different case, which is an action at law to recover damages for failure to perform. The plaintiffs do not seek the aid of a court of equity, but stand .upon their contract. In answer to the defendant’s argument that the easement of the New York and New Jersey Telephone Company is a small matter and does not impair the value of the farm, the plaintiffs say the farm with that incumbrance is not what we bought. We don’t want it but we want our money back. There is no law that I know of which justifies the court in refusing to the plaintiffs the relief which they demand. It is not for the defendant or for the court to say that the plaintiffs are too technical, and they ought to be satisfied with something less than the contract gives. The maxim de minimis non curat lex does not apply in such a case. That maxim can only apply to imperfections in title so slight that the court can say of them, *344 the parties to the action did not have such defects in contemplation, and if they had they would have disregarded them. It may be that the plaintiffs intended to lay out the farm in a high-class residence district. In fact, something of the kind may be inferred from the evidence. The title search brought to the plaintiffs’ knowledge the recorded grant made by Requa of a perpetual easement to construct and maintain over the farm a line of telegraph and telephone poles and wires. That may have' been a very objectionable incumbrance in the eyes of the plaintiffs, and I think it would be a very startling proposition for the court to say that it was a defect in title which may be disregarded in this action at law. It is not a case in which the plaintiffs have reaped any advantage from a part performance of the contract, nor a case in which the defendant has tendered compensation for a failure to perform in some minor detail, and. the only question is whether the defendant has shown a full performance of the contract as alleged in his answer. Plainly he has not. (Spence v. Ham, 163 N. Y. 220; Desmond-Dunne Co. v. Friedman-Doscher Co., 162 N. Y. 486; Drew v. Goodhue, 74 Vt. 436; Arthur v. Wynne, L. R. [14 Ch. Div.] 603; Hills v. Sughrue, 15 M. & W. [Ex.] 253.) Though the existence of the telephone line was a visible construction upon the highway over'the lands to be conveyed, which the plaintiffs might have seen at the time of the contract, that furnishes no ground of defense against their claim. (Pryor v. City of Buffalo, 197 N. Y. 123.) There are some cases of judicial sales in which the bidder has been compelled to accept title notwithstanding some minor defect therein, but that rule has not been extended to private contracts. (Goodrich v. Pratt, 114 App. Div. 771; Wetmore v. Bruce, 118 N. Y. 319.) The defendant introduced in evidence the statute of New Jersey which allows telegraph and,telephone companies to acquire the *345 right to use a highway for the purpose of erecting poles and stringing wires therein on making compensation to the owners of the soil on the line of the proposed route, but, manifestly, that statute has no application here. Under the well-settled rules of law, the plaintiffs are entitled to damages for the failure to perform the contract of sale and the judgment appealed from should be reversed and a new trial granted, with costs to abide the event. Willard Bartlett, Oh. J., Hiscock, Collin, Hogan, Seabury and Pound, JJ., concur. Judgment reversed, etc.