26 N.Y.S. 842 | N.Y. Sup. Ct. | 1893
The complaint in this action alleges a contract between one Beran and the defendant for the purchase of premises No. 347 Greenwich street; that, by this contract, a general warranty deed was to be delivered; that Beran assigned the contract to plaintiff; that plaintiff paid the consideration named in the contract to the defendant, and on or about December 1, 1891, the defendant conveyed the premises to the plaintiff; that, in and by the deed of conveyance, the defendant covenanted “that the said premises are free from incumbrances,” (except a mortgage and lease therein referred to;) that defendant violated his said contract, and said covenant in his deed to plaintiff, in that said premises were not free and clear from all incumbrances, in that there existed, immediately in front of said premises, an elevated railroad, which railway interferes with the beneficial use and enjoyment of the premises; and that the defendant has executed an instrument under seal, releasing all claims he might have as owner of the premises conveyed. The answer admits the contract, the deed, and the covenant in the deed, denies violation of the covenant, and alleges, as and for an additional defense, that the Manhattan Railway Company was in lawful possession of the elevated iron structure, and lawfully operated the steam railway mentioned in the complaint, past and in front of said premises, at the time of the making of said contract and the assignment thereof, and the execution of the deed, and that such possession and operation of said railroad was actual, open, visible, and notorious, and well known to the plaintiff and Beran. To this additional defense the plaintiff demurred, upon the ground that it was insufficient, in law, upon the face thereof. Upon the trial of this demurrer, the defendant attacked the plaintiff’s complaint, and the court, having held the complaint bad, gave judgment absolute for the defendant; and, from the judgment thereupon entered, this appeal is taken.
It seems to us that much learning has been wasted, and much