79 A.D. 242 | N.Y. App. Div. | 1903
The defendant sold under execution against one Bogaskie certain property claimed by defendant to be personal property, and at the sheriff’s sale it was bid in by plaintiff for $210. A part of the property so sold was afterwards adjudged to be realty and title thereto did not pass to the purchaser. There was evidence, given upon the trial that the value of the property to which plaintiff took title under this sale was less than the sum bid. In the action against plaintiff and others in which it was adjudged that some portion of the prop^ erty sold was real estate the plaintiff expended in the .employment of counsel and for witnesses the sum of $181.50. The defendant had notice of this action and was asked by plaintiff to make the defense. The plaintiff in this action claims that, before he bid upon the property, the defendant, through one of its agénts who attended
The only other question is as to the measure' of damages. The learned court seems to have instructed the jury that plaintiff was not entitled to recover the value of the property of which he was deprived, but only the sum bid, $210, and the cost of defense of the action in which title to the property was determined, to wit, his counsel and witness fees, less the value of the personal property retained by plaintiff. The Verdict was for $291.66, and apparently follo.ws the instruction of the court in leaving out of consideration the value of the property of which plaintiff was deprived.
The rule adopted by the court was most favorable to the defendant. On a breach of warranty of title it was held in Rickert v. Snyder (9 Wend. 416) that counsel fees paid out in defending the title are recoverable against the warrantor. And I do not find that the rule there declared has since been in any case dej>arted from. The agreement to hold harmless must include such necessary expense especially where the obligor is requested to make such defense and fails to do so. ( Westervelt v. Smith, 2 Duer, 449.)
The judgment should be affirmed, with costs. *
Judgment and order unanimously affirmed, with costs.