Sesky v. Jolrane Realty Corp. , 166 Misc. 564 ( 1938 )

Lydon, J.

The facts are stated in the dissenting opinion of Frankthaler, J. The question to be decided is whether the title tendered by defendant was reasonably free from doubt and, therefore, marketable. Title was rejected by the purchaser on the advice of its attorney. Insurance had been refused by one of the title companies. The objection raised does not seem to me a fanciful one.

The deed from Silver to his wife and the deed from Silver and his wife to Pecher were both acknowledged on the same day and were simultaneously recorded two days later. We do not know when these deeds were delivered or which of them was delivered first. If the deed from Silver to his wife of an undivided half of his property was delivered to her before the joint deed of Silver and his wife was delivered to Pecher, it would follow that after the delivery of the latter deed Silver and his wife each remained seized of an undivided fourth interest in the property. Up to the time of the tender of title to the purchaser in the present case Silver had not divested himself of that interest.

Judgment affirmed, with twenty-five dollars costs.

Levy, J., concurs; Frankenthalbr, J., dissents, with opinion.