61 N.Y.S. 695 | N.Y. Sup. Ct. | 1899
This action is for a breach of a covenant against incumbrances, based upon the allegations that, at the time of delivery of the deed, there were unpaid taxes upon the property to the amount of $116.86, together with the penalty and interest thereon, for nonpayment. This allegation would disclose an immediate breach of the covenant (Gerard Tit. [4th ed.] 525), and, while the plaintiff’s recovery would depend, as to amount, upon proof that he had paid off the incumbrance, the fact that it is not discharged affects only the measure of damages and does not go to the cause of action. Stearn v. Hesdorfer, 9 Misc. Rep. 134; McGuckin v. Milbank, 83 Hun, 473. Hence, the plaintiff presents a case, and, by his demurrer, the sufficiency of the separate defense to meet that case is the only point left for my determination. This defense is that upon the foreclosure of a certain mortgage, assumed in this deed by the plaintiff, the property conveyed was sold, and that after the payment of the expenses of-sale and of the taxes there remained a deficiency of $714.50, but that, by stipulation between this plaintiff and the mortgagee, it was agreed that no judgment for the deficiency should be entered. The gist of the defense is that since the taxes have been paid by a third party, who has agreed not to enter judgment, as he was entitled to do, for the amount, the plaintiff was "not injured by the existence of the lien for the taxes, but I cannot hold this to be the necessary result. In effect, the taxes were paid for the plaintiff’s account and he was to respond to
Demurrer sustained, with costs, with leave to amend within twenty days.
