Kleinberg v. Ratett

The action is brought by plaintiffs to recover the down payment made by them on a contract for the purchase of certain real property, upon the ground that the defendant was unable to give a marketable title to the premises in question, free from incumbrances, in that they were incumbered by a stream of water flowing through a conduit or pipe about four feet underground across the property. The answer, after denying that the stream in question was an incumbrance, sets forth a separate defense and counterclaim for specific performance of the contract. The learned Special Term made a decision in…