Finck v. Bauer

Freedman, P. J. There is no dispute as to the material facts in this case. The action was brought by the plaintiff to recover 'the sum of $100 as commissions for procuring a loan of $5,000 upon premises owned by the defendant. The contract between the parties was in writing, under seal, and by its terms the defendant employed the plaintiff as his broker to procure a loan of the amount above stated, agreeing to pay 2 per cent, therefor, and also for drawing bond and mortgage, etc. The contract con [219] tained this clause: “It is further understood that I am to furnish a title, in fee simple, free and clear from all incumbrances and one that will be satisfactory to the attorneys of John Finch.” The plaintiff procured the acceptance of the required loan by one Fitch, who was able, ready and willing to make the same and to take the bond and mortgage. Upon examination of the title, it was discovered that the building, standing upon the premises, had no easterly wall, and that defendant had only a right to use the wall, of the building adjoining, as a support for the beams of his house. The right was evidenced by two written sealed instruments, duly acknowledged and recorded. The first of these instruments provided that “ whenever said wall shall cease to exist the said parties hereto mutually agree that they will then build a party-wall at their joint expense, one-half of such wall to stand on the ground of each party, each of said parties to stand one-half of the expense of building such wall, but this clause shall not be binding upon either party in case he shall sell his said property before said wall is destroyed.” The second and subsequent agreement contained this clause: “ That upon the destruction of said wall by fire, or if by lapse of time the same shall become unsafe and unfit for use to support the beams therein inserted, the parties to this agreement, or those claiming under them, shall proceed to build a party-wall, one-half thereof to stand on the land of each party and at joint expense, and the said agreement and this amendment thereto shall bind said parties, their heirs and assigns.” This agreement was executed-by Eichard G-. L. Dieffenbach and John Sexton, then the owners of adjoining lots, and the defendant’s wife acquired title to the premises in question from Sexton. ¡Nothing was said, in the agreement by the defendant with the plaintiff, relative to the walls of the house nor the beam right — the materials, size and use of the building, and size of the lot, only being given. The only question to be determined in this case is whether or not this agreement made by the defendant’s grantor was an incumbrance on the premises. If so the defendant failed to furnish to the plaintiff a title “ free from incumbrances,” the plaintiff earned his commissions and was entitled to judgment herein. In support of the proposition that a party-wall is not an incumbrance, the respondent cites Hendricks v. Stark, 37 N. Y. 106, and Mohr v. Parmelee, 43 N. Y. Super. Ct. 320. These cases are similar in [220] application and are distinguished in O’Neil v. Van Tassel, 137 N. Y. 297, cited in Schaefer v. Blumenthal, 169 id. 221, reversing the same case in 51 App. Div. 517. In. O’Neil v. Van Tassel, supra, it was held that a party-wall, existing by virtue of a perpetual covenant running with the land, was an incumbrance. The condition of the beam right held by the defendant’s grantor obligated his heirs and assigns, if at any time the wall upon the adjoining premises should be destroyed by fire or by lapse of túne the same should become unsafe or unfit to support the beams, the parties to the agreement or " those claiming wicker them ” should build a party-wall one-half thereof on the lands of each party and at joint expense. This contract placed a burden upon the land of the defendant; he. was obliged to, and might- be called upon at any time to, devote a certain portion of his premises upon which to build a party-wall. It was a covenant running with the land and hence an incumbrance. 137 N. Y., supra. The defendant was allowed to prove upon the trial, over objection by the plaintiff and exception taken to the ruling of the court, -that, when the defendant called upon the plaintiff’s representative to sign the contract for the loan, he informed said representative of the existence of the beam right. This was denied by the agent of the plaintiff but the court below evidently believed the testimony, for, upon no other testimony, could he have based his decision dismissing the complaint. The admission of this testimony was clearly error. It was testimony tending to contradict the terms of a written instrument, and the rule regarding such testimony is too- well known to require citation of authority in its support. Under the undisputed evidence in the case the plaintiff was entitled to judgment. Judgment reversed and new trial ordered, with costs to the appellant to abide the event. Gildersleeve and Giegerioh, JJ., concur. Judgment reversed, and new trial ordered, with costs to appellant to abide event.