Appeal from order of the General Term of the Superior Court of the city of New York, made March 6, 1888, which reversed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term, and ordered a new trial.

“ The land contracted to be conveyed is located in the city of New York on the southerly side of One Hundred and Twenty fourth street, and has a frontage upon that street of thirty-nine feet, commencing at the intersection of Fourth avenue, and westerly therefrom. One Grace T. Turnbull, formerly Smith, is the owner of the lot adjoining on the west, whose title was derived from the same source as that of the plaintiff, but of prior date. Her lot has a frontage of eighteen feet, and commences at a point, as is claimed, 298 feet easterly from the intersection of Madison avenue with One Hundred and Twenty-fourth street. It is contended on the part of the appellant that the easterly line of Madison avenue is but 400 feet from the westerly line of Fourth avenue, and that consequently Mrs. Turnbull’s lot laps over five feet upon the lot embraced in the contract in question: whilst on the part of the plaintiff it is claimed that at the time of the conveyance to Mrs. Turnbull the distance between the two avenues at this point was 405 feet.

■“ But under the view taken by us of this case it becomes unnecessary to consider this question or construe the statutes under which Madison avenue was laid out as an avenue of the city of New York.

“ The lands upon the southerly side of One Hundred and Twenty-fourth street in the block in question formerly belonged to Thomas Fealey and David Houston, who erected twelve buildings thereon, including the one covering the lot now owned by Mrs. Turnbull. Her title is derived through the foreclosure of a mortgage which was given to her by Fealey and Houston. The mortgage described the property as beginning at a point on the southerly side of One Hundred and Twenty-fourth street distant 298 feet easterly from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of One Hundred and Twenty-fourth street at or in front of the middle of a pa/rt/y^wall; running thence southerly and parallel with Madison avenue and partly through the center of said party-wall 100 feet and 11 inches to the center of the block; thence easterly in the center line of the block and parallel with One Hundred and Twenty-fourth street eighteen feet; thence northerly and parallel with Madison avenue and partly through the center of a party-wall 100 feet and 11 inches to the southerly side of One Hundred and Twenty-fourth street, and thence westerly along the southerly side of One Hundred and Twenty-fourth street eighteen feet to the place of beginning.

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