13 N.Y.S. 558 | New York Court of Common Pleas | 1891
On September 28, 1889, by an agreement under their hands and seals, the plaintiff agreed to purchase and the defendant agreed to sell and convey the premises known as 117 East Ninety-First street in the city of New York. As part of his agreement the defendant covenanted that the building was completed in compliance with the laws of this city and state and the rules and regulations of the board of health and fire department of the city of New York. Some time before the final performance of the agreement the plaintiff ascertained that the drainage and plumbing work in the premises were defective, and in violation of the laws, rules, and regulations referred to; but, notwithstanding, she accepted a conveyance of the premises, without expressly reserving her right to proceed against defendant upon his covenant. Thereafter plaintiff caused the cess-pool and plumbing work to be put in proper condition, and for the recovery of the expense incurred brought this action, in which judgment was rendered in her favor. Assuming that, notwithstanding her acceptance of the deed, the plaintiff could recover upon the covenant in the preliminary agreement, we do not feel authorized to direct a reversal, inasmuch as the return of the court below discloses no error, and the evidence introduced for plaintiff is sufficient to sustain the trial justice’s disposition of the matter. On the trial, however, as well as upon the hearing of this appeal, the learned counsel for defendant contended that the action was not maintainable, and should have been dismissed, the ground for