Haar v. Daly

Per Curiam. The vendee in a real estate purchase contract sued to recover the down payment and expenses of examining the title, upon the ground that defendant (vendor) failed to convey a title free and clear of incumbrances, except as stated in the contract. The following clause was contained in the contract: “ The seller shall give and the purchaser shall accept a title such as the Title Guarantee & Trust Company will approve and insure.” The specific objections to the title made by the vendee were not excepted in the contract. The agreement between these parties “ was not to tender a good title, or one satisfactory to the vendee, but one which the title company would approve.” (Flanagan v. Fox, 6 Misc. 132, 137; affd., 144 N. Y. 706, “ on opinion below.”) It was not the duty of the vendor to have the title company approve the title. “ The contract does not so specify the obligation of the vendor. It merely prescribes the standard of quality of the title [424] which the vendor agrees to convey. * * * For this purpose it was necessary for the vendee to employ the title company to search the title for him. * * * We think the intent of this contract was to make the title company the final judge whether the title was good or bad.” (Eastman v. Horne, 205 N. Y. 486, 488.) Assuming that the vendor may have had the burden of proving that he obtained the title company to approve and insure the title, we think the evidence discloses that this burden was met. The judgment should be reversed upon the law and the facts, with costs, and judgment granted for the defendant, dismissing the complaint, with costs. Kapper, Carswell and Scudder, JJ., concur; Lazansky, P. J., and Davis, J., dissent in separate memorandum.