¶1I concur in the opinion of Mr. .Justice McLaughlin in this case. It may be well, however, to add a word as to a point which he has not discussed. The plaintiff claims that he was in substance released because of the defendant’s failure to furnish him with proof of adverse possession at the time when the title was to be 'closed; and he cites Simis v. McElroy (12 App. Div. 434) in support of this contention. There are some observations in Justice Williams’ opinion in that case to the effect that where the vendor claimed a clear record title when the deed was tendered, he should not upon the trial be permitted to abandon that claim and insist that the vendee should accept a title by adverse possession. The case, however, was decided upon a different ground, namely, that the evidence was insufficient to show a good marketable title by adverse possession. Our judgment was affirmed in the Court of Appeals-solely upon that ground (160 N. Y. 156), and the point in question was not even referred to. If it had been deemed decisive, the question of adverse possession was quite unnecessarily discussed. We do not think, therefore, that the case is authority for the plaintiff’s present contention. Then, too, the facts-in the case at bar are somewhat different. The plaintiff here is the vendee. 'He alleges that the title tendered by the vendor was defective and unmarketable; and on that ground he sues to recover the amount paid upon account of his contract and the expenses incurred in searching the title. The defendant certainly has a right, in answer to such a claim, to show that it is unfounded ; that his title is not defective and unmarketable ; that, on the contrary, it is good and sufficient. This defense does not depend upon what he may have previously asserted upon the subject, but upon the actual fact.
¶2And further, the defendant in his counterclaim sets up the facts-upon which -he claims a specific performance of the contract. Having proved these facts, he is entitled to the equitable relief prayed for. He has in truth abandoned no claim that he ever made upon the subject of his title, His claim throughout has simply been that he had a good title ; and that claim he has fully established.
¶3Yan Brunt, P. J.,. Bumsey, .Ingraham and McLaughlin, JJ., concurred.. •
¶4Judgment affirmed, with costs.