LABA V. CAREY
277 N.E.2d 641 (1971)
NATURE OF THE CASE: This was a dispute over the refund on a house deposit from a sale
gone bad.
FACTS: Laba (B) entered into a contract with Carey (S) to purchase property S owned. The
contract was a standard form contract that expressly made the sale conditioned on the
conditions listed on page 934 Rabin 4th. The title company searched the records and reported
back that there was marketable title but they excepted a telephone easement and 'Waiver of
Legal Grades' related to a grade problem with installing a sidewalk in front of the
property. There were some issues related to current tenants on the property but at no time
did B question S's title or the exceptions noted by the insurance company. S tendered the
deed at the time of closing and B responded by claiming that S was unable to deliver
marketable title. An impasse resulted and B sued to have its deposit returned and for the
costs of title examination and counsel fees. The court granted S's motion to dismiss the
complaint as the differences between the legal and existing grades of the sidewalk was a
matter related to abutting property and had no effect on title to the disputed property. The
court also found that marketability was not affected by the grade or that of the yard. B
appealed and the Appellate Division reversed; the title company failed to insure title
unconditionally and that was a breach of contract. This appeal resulted.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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