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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.

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