App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. building No. 37 West Twenty-eight street, but that the building encroached two and three-fourths inches upon land east of the lot included in those deeds. The proof of that fact was prima facie evidence that neither the defendant nor Hughes could convey a marketable title to the plaintiff — such a title as a prudent person knowing the fact would not hesitate to take. (Moore v. Williams, 115 N. Y. 586; Irving v. Campbell, 121 id. 353; •Wilhelm v. Federgreen, 2 App. Div. 483.) It does not appear how long the building has been there. A witness testified that he had known of its standing there for twentythree years. If the strip of land covered by its east side has been thus occupied under claim of title for twenty years, or if the east line of the house has, by acquiescence of its owner and the owner of the adjacent premises, been treated as the line for that length of time, then it will be deemed to have been established as such. (Baldwin v. Brown, 16 N. Y. 359; Reed v. Farr, 35 id. 113.) But the mere fact that the encroachment had existed for twenty years or upwards was not sufficient evidence that the adjacent owner was concluded from asserting title to the two and three-fourths inches on which the building encroached. The possession of land is presumed to be held subordinately to the true title until such presumption is repelled by evidence that it has been and is held under claim of title adversely or in hostility to the true owner, who may claim title to it. (Doherty v. Matsell, 119 N. Y. 646.) And if the line had been thus established, so as to perfect title in the vendor, or his assignee, to the land so encroached upon, the burden was with the defendant to prove the fact. (Hartley v. James, 50 N. Y. 38; Wilhelm v. Federgreen, 2 App. Div. 483.) As has been observed, it was proved that the objection on account of the encroachment was raised in behalf of the plaintiff when he and Hughes met at the time designated to complete performance of the contract. The only evidence tending to be contradictory of such fact is that of a witness who does not contradict it further than saying that, after he came there, nothing was said in his hearing about any encroachment. There is evidence to the effect that the objection was made to Hughes before that witness arrived. Mr. Hughes does not become a witness to contradict it, nor is there any evidence to the contrary. SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. The exception to the reception of the evidence about the encroachment, on the ground that it was not alleged in the complaint, we think, was not well taken, for the reason, before indicated, that the action was not one to enforce performance of the contract, but to recover the money paid because of the breach arising from the inability and failure on the part of the defendant to make the deed of conveyance to which the plaintiff was entitled by the terms of the contract; and inasmuch as the defendant, through Hughes, was unable to perform, no offer of payment to the defendant of the purchase money was requisite to put the defendant in default, or for the plaintiff to protect himself against such imputation. (Hartley v. James, supra.) It is by no means clear that the plaintiff was not entitled to the covenant of warranty of the defendant. He was, unless the words "or cause to be executed" and delivered to the plaintiff, a deed with covenants, etc., required the latter to accept the covenant of any person by whom the title should be held when the time arrived. for performance of the contract. (Robb v. Montgomery, 20 Johns. 15; Bigler v. Morgan, 77 N. Y. 312.) In James v. Burchell (82 N. Y. 108) the contract in question contained a like provision, that the plaintiffs agreed to "convey, or cause to be conveyed," to the defendant the premises in fee by a full covenant warranty deed. The plaintiffs conveyed the premises to another. It was held that this, under the circumstances of the case, relieved the defendant from further performance of the contract, and in the opinion of the court it was said that some stress was laid upon the provision in the contract, that the plaintiffs agreed "to sell and convey, or cause to be conveyed." This, it was held, was not controlling, and that the testimony showed that the defendant did not intend to accept any other warranty than that of the plaintiffs. It is reasonable to suppose that usually, when a vendee takes a contract containing a provision for conveyance with covenants of warranty, he has in view the responsibility of his vendor, unless something appears to the contrary in the contract. The provision that the vendor will do it, or cause it to be done, as expressed in the contract in question, does not, I think, indicate a purpose to enable him to relieve himself from making the covenant by the substitution of such other person as he may choose to take the relation of grantor and covenantor. App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. These views lead to the conclusion that the defendant's exception be overruled, and that the plaintiff have judgment upon the verdict. All concurred. Exceptions overruled, and judgment directed for plaintiff on verdict, with costs. JOSEPH GALLO, Appellant, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Respondent. Contract determinable on ten days' notice waiver of the notice by an instrument not under seal — conditional delivery of such instrument· - destruction of the locus in quo by fire. A contract, pursuant to which the plaintiff was to have the privilege of assorting the refuse dumped from the carts of the street cleaning department of the city of New York, provided that if at any time the commissioner of street cleaning should deem it for the best interest of the city to terminate the contract, for any other cause than the failure of the plaintiff to comply with its terms, he might do so upon giving ten days' notice to the plaintiff. After the plaintiff had entered upon the performance of his contract, the assorting of refuse was, with his acquiescence, suspended in compliance with the requirements of the health department of the city, and thereafter the plaintiff executed three instruments, one of which stated that the contract was thereby canceled and revoked by mutual consent, and the others that the contract might be terminated forthwith without service of the notice specified in the contract, and without any further notice being given to the plaintiff; subsequently the commissioner of street cleaning served a notice on the plaintiff stating that his services would not be required after that date. In an action brought to recover damages for a breach of the contract it was Held, that, while the instruments executed by the plaintiff after the suspension of the assorting, not being under seal, could not be effectual as a release without proof of a consideration to support them, they constituted prima facie a waiver of the notice provided for by the contract; That it was competent to show, however, that such instruments were delivered conditionally, and that the condition upon which they were to become operative had not arisen, as the effect of such evidence would not be to contradict their terms nor their legal effect; That even if the instruments in question did not operate as a waiver of the notice provided for by the contract, the plaintiff's recovery was, by reason of the provision in the contract authorizing the commissioner to terminate it, upon ten days' notice, limited to the damages for that period; SECOND DEPARTMENT, MARCH TERM, 1897. [Vol. 15. That there being no provision in the contract for the reconstruction or repair of a dumping board, which, by reason of a fire, was not in condition for use when the contract was made, the plaintiff was not entitled to any allowance, because the dumping board was not fitted up and put into use. APPEAL by the plaintiff, Joseph Gallo, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of May, 1896, upon the verdict of a jury rendered by direction of the court, as dismisses his complaint as to the first and third alleged causes of action. This appeal was transferred from the first department to the second department. Arthur H. Masten and Henry M. Ward, for the appellant. William L. Turner, for the respondent. BRADLEY, J.: The first cause of action set forth in the complaint is founded upon an alleged breach by the defendant of a contract between the parties, whereby it was agreed that the plaintiff should have the privilege of assorting the refuse dumped from the carts of the street cleaning department at the dumping boards of the city, for the period of one year from June 12, 1892, for which the plaintiff undertook to furnish all the laborers necessary to trim the scows and boats of that department, and pay to the city $1,785 weekly in advance. The plaintiff entered upon the performance of the contract. The alleged breach is that, on or about the 1st day of November, 1892, the defendant refused to allow the plaintiff to proceed further in its performance. The contract contained a provision to the effect that if at any time before the expiration of the contract period the commissioner of street cleaning should deem it for the interest of the city so to do for any other reason than the failure of the plaintiff to comply with the terms of the agreement, he should have the power to terminate it upon giving at least ten days' notice in writing to him of such intention, and that on the date and time specified in the notice the plaintiff would discontinue the work and the agreement absolutely terminate. In September, 1892, the health department, in apprehension of cholera, as a precautionary measure required that assorting the App. Div.] SECOND DEPARTMENT, MARCH TERM, 1897. refuse should be, and it was, suspended. In this the plaintiff acquiesced, and pursuant to an agreement with the defendant he, by laborers furnished by him, did the work of trimming the scows at the dumping boards, without any assorting, at a stipulated price for the service, until about the first day of November, when he received from the commissioner of street cleaning a notice in writing that the contract for trimming scows had been awarded to a person named, and that the services of the plaintiff's men in such work would not be required after that date. This notice was not in the form of that contemplated by the terms of the contract, as it did not specify a day at least ten days subsequent to the time of service, for the termination of the contract. But, in view of the fact that it was within the power of the commissioner to put an end to the contract on ten days' notice, it would seem that such must be deemed to have been the consequence of this notice if at that time the ten days' notice provided for in the contract was necessary to terminate it. The view of the commissioner evidently was that no such notice was then required for the purpose by reason of three certain instruments in writing of date October 3, 1892, executed and delivered by the plaintiff, in one of which it was stated that the contract was thereby canceled and revoked by mutual consent without prejudice to either party as against the other; in another of them it is stated that the contract may be canceled, and absolutely terminated forthwith, by the commissioner without the service of any such notice as that specified in the contract, for its termination, and by the terms of the other the plaintiff consented and agreed that the contract might be terminated forthwith and become absolutely void from and after that date without the service of further notice on him. Those instruments not being under seal could not be effectual as a release without proof of a consideration to support them as such. (Crawford v. Millspaugh, 13 Johns. 87.) But they might constitute a waiver of the notice provided for by the contract, for its termination. (Buel v. Trustees of Lockport, 3 N. Y. 197; Phyfe v. Eimer, 45 id. 102.) And without something appearing to the contrary they would have been of such effect, and as a consequence the first alleged cause of action would have no support in the evidence. Such was the situation when the parties treated the evidence as closed. But afterwards, on the application of the plaintiff's counsel, |