Kingsland v. Fuller

Order affirmed,'with ten dollars costs and disbursements, on opinion of ¡Daly, J., in court below.

Present — Van Brunt, P. J., Patterson, O’Brien, Ingraham and McLaughlin, JJ.

The following is the opinion of Daly, J.:

This is a motion to compel the purchaser at a foreclosure sale to complete his purchase. The property sold was subject to a very onerous incumbrance, of which no notice was given at the sale, as it should have been. (Code, § 1678.) The beams of the building sold rested in the wall of the premises to the west, by virtue of an agreement which, after granting that easement, provided that no building should be erected upon the lot in question hereto a greater depth than forty-five feet, and that any extension built thereon should be at least eight feet distant from said wall, in which, according to the agreement, the adjoining owner might maintain three rows of windows. The agreement in question was referred to on the sale and in the notice of sale, but its contents were not given nor described. On the contrary, it was described as giving “ rights, privileges and easement * * * in the westerly wall of the build*315ing adjoining said premises,” whereas the wall to which the agreement referred was the easterly wall of the building adjoining the premises on the west. The westerly wall of the building adjoining the premises to be sold was, of course, the wall of the building east of said premises, and as that was described in the advertisement of sale as a party wall, intending purchasers might readily infer that the “ rights, privileges and easement ” in the wall mentioned were such as pertained to a party wall. Under the circumstances, as the plaintiff made an error in the description which was calculated to mislead intending purchasers, the latter ought not to be held to the obligation to examine the agreement thus misdescribed in order to detect possible errors, but must be deemed to be justified in relying upon the accuracy of the description. They were also justified in assuming that if the agreement in question created a charge upon the land it would be “ declared at the time of the sale,” as prescribed in the section of the Code above referred to. This is a case, I think, in which the discretion of the court may be invoked to relieve, the purchaser. (Riggs v. Pursell, 66 N. Y. 199.)

Motion denied, with ten dollars costs.