George F. Driscoll, Respondent, v. James G. Carroll, as Trustee under the Last Will and Testament of Jane Megarr, Deceased, Appellant

George F. Driscoll, Respondent, v. James G. Carroll, as Trustee under the Last Will and Testament of Jane Megarr, Deceased, Appellant. Second Department, June 12, 1908, Beal property — auction — party wall described in terms of sale — rejection of title. Assuming that a party wall agreement runs with the land and is an incumbrance, one who buys at a public auction where the map as advertised and the terms of sale show and describe the boundary as running through a party wall, cannot reject title or recover his deposit because of the incumbrance. Appeal by the defendant, James G. Carroll, as trustee, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 25th day of February, 1907, upon the decision of the court rendered after a trial at the Kings County Special Term. This is a suit by the purchaser against the seller for the specific performance of a contract of sale of a. city lot and house, provided a-deduction be first made from the purchase money for an alleged encumbrance on the title, or else for the recovery of a judgment for the amount of deposit paid on the contract. The plaintiff recovered the said money judgment. -The lot was sold by public auction. The map by which it was advertised for sale and sold showed a party wall on the east boundary line, and the terms of sale, which were signed and agreed to by the plaintiff, described the said line as running through a party wall. Thomas Gilleran, for the appellant.]] Walter Jeffreys Carlin, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The learned court below decided, on an examination and comparison of the decisions on that subject (Cole v. Hughes, 54 N. Y. 444; Scott v. McMillan, 76 id. 141; Hart v. Lyon, 90 id. 663 ; Mott v. Oppenheimer, 135 id. 312; O'Neil v. Van Tassel, 137 id. 297; Sebald v. Mulholland, 155 id. 455 ; Corn v. Bass, 43 App. Div. 53; Oppenheimer v. Knepper Realty Co., 50 Misc. Rep. 186), that the party wall agreement ran with the land and- was therefore an encumbrance on it. From this the conclusion of law was drawn that the plaintiff was not obliged, to take the title. But.this conclusion does not follow. The map and terms of sale informed the plaintiff of the party wall, and there can be no party wall without an agreement, and often, and indeed usually ^ party wall agreements run with the land and are perpetual encumbrances •thereon. It.was-for the- plaintiff to'ascertain the; nature of the party wall agreement before he made his contract of purchase. It is to be presumed that such a contract may be an encumbrance and' run with the land. Even where there is nothing said of the division walls in the terms of sale by public auction, the purchaser cannot reject the title for their being party Walls, for they were visibly there and it was. for him to ascertain their character (Hendricks v. Stark, 37 N. Y. 106); but here the case is stronger ¿gainst the purchaser, for the terms of sale described the wall as a party wall. O'Neil v. Van Tassel and Oppenheimer v. Knepper Realty Co. were not cases of public sales,, and moreover the contracts of sale were that the walls there in' question were not party Avails, and that is Iioav the purchasers were allowed to reject the title and recover back their deposits. Of the. other six cases first, cited above five Avere by a party to a party wall agreement to recover of a-grantee of the other party one-half of the cost of the wall on the latter using it, or else to restrain him from using it until he paid the same, and the question was whether the grantee was bound to pay, arid that depended -on Avhether the contract ran with the land,'for otherwise he was not bound, but only his grantee or predecessor who made the agreement to pay such one-half was bound to do so. It is manifest that, they have no: ajiplication to the question to-be decided here, viz., whether, assuming that the party Wall agreement runs with and is a perpetual encumbrance on the land, this plaintiff may reject the title. The other one is reported so blindly that the precise facts and the application of it are not disclosed. It Suffices that the point under discussion here was not in mind there. ■ The judgment should be reversed. ' . Woodward, Jenks, Hooker and Rich, JJ., concurred. ' Judgment reversedon the law and facts and new. trial granted, costs to abide the final award of costs..