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Bardes v. Herman

Supreme Court of New York, Appellate Division

May 26, 1911

JOHN BARDES and GEORGE W. STAKE, Respondents,
v.
MARTIN HERMAN, Appellant.

Page 773

APPEAL by the defendant, Martin Herman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 1st day of June, 1909, upon the decision of the court rendered after a trial at the Kings County Special Term.

COUNSEL

Selden Bacon [Saul S. Myers with him on the brief], for the appellant.

William Allaire Shortt, for the respondents.

BURR, J.:

On January 17, 1907, plaintiffs entered into a contract with the defendant to sell a plot of ground situated on the southeasterly corner of Wave and Bay streets in the borough of Richmond and city of New York, the plot being 75 feet wide in front on Bay street and in the rear, and 116 feet on Wave street and on the side of the plot parallel thereto. On the date specified in the contract plaintiffs tendered a deed purporting to convey the said premises and demanded payment of the purchase price. Defendant refusing to perform, and asserting a defective title, this action was brought to compel a specific performance of the contract.

A vendee who refuses to take title upon the ground of a defect therein must point out the objection and give proof tending to establish it or to create such a doubt in respect thereto as to make the title unmarketable. (Greenblatt v. Hermann, 144 N.Y. 13; Rosenblum v. Eisenberg, 123 A.D. 896.)

It will not do for the defendant to say he is not satisfied with the title, without showing some lawful incumbrance or claim existing against it. (Folliard v. Wallace, 2 Johns. 395.)

If the existence of the alleged fact which is claimed or supposed to constitute a defect in or cloud upon the title is a mere possibility, or the alleged outstanding right is but a very improbable or remote contingency, which, according to ordinary experience has no probable basis, the court may, in the exercise of a sound discretion, compel the purchaser to complete his purchase. (Cambrelleng v. Purton, 125 N.Y. 610; Ferry v. Sampson, 112 id. 415.)

Plaintiffs' title to the premises in question is derived through

Page 774

various colonial grants and letters patent from the People of the State of New York, and defendant's only objection to the validity of such title is based upon the contention, first, that the grants to Norwood, hereinafter referred to, were bounded on the east by the high-water mark as it existed at that time, and that the patent to Vanderbilt, also hereinafter referred to, was bounded on the west by the low-water mark as it existed at that time, and that, consequently, the foreshore between high and low-water mark has never been granted by the People of the State of New York to any person; and, second, that all, or some portion, of the premises in question constitutes a part of such foreshore, and lies between the high-water line as it existed when the Norwood grants were made and the low-water line as it existed when the Vanderbilt patent was granted. Unless each of these propositions is sustained the judgment in this action should be affirmed.

On September 29, 1676, Edmund Andros, Governor of the Province of New York, granted to one Andrew Norwood a piece of land on Staten Island, lying upon the easterly side thereof. This land was described as bounded to the northward by the land of Colonel Francis Lovelace, to the east by the waterside, and to the south and west by the commons.

On September 29, 1677, a further grant was made by the Governor of the Province to the said Norwood, of a piece of land lying to the northward of the said Norwood's plantation on Staten Island, which had, by said Governor's order, been laid out for Andrew Norwood, aforesaid, being in length by the waterside, one hundred and fourteen rods, and ranging west southwest up to the hills thirty-five rods, being bounded to the northward to the ...


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