157 N.Y.S. 68 | N.Y. App. Div. | 1916
The defendant is a corporation organized, among other things, to examine and insure titles to real property. The action is brought upon a policy of title insurance, dated April 4, 1907, issued by defendant to the plaintiff Edward 0. Gains
In the winter of 1906-1907 one Samuel G-ainsborg, now deceased, the father of plaintiff Edward C. G-ainsborg, entered upon negotiations to purchase from the executors of Catharine M. Andrews, deceased, a large tract of land, undeveloped or only partially developed, which lay in the borough, now county of Bronx, in the city of New York. The city had adopted maps laying out streets and avenues across this tract, and the work of opening these streets and otherwise improving the property was in active progress. This involved the laying of assessments. After some negotiations as to price between Mr. John H. Judge, one of the executors of Mrs. Andrews’ estate, and Samuel Gainsborg, a price was agreed upon and a sale arranged. A real estate broker named Davies was active in bringing the negotiations to a conclusion. At Gainsborg’s instigation the contract was executed by one Claudio Capo, as purchaser, but the real party in interest was Gainsborg, who had already formulated plans for the incorporation of the Empire Development Company, in which he intended ultimately to have the title vest. When the purchase was completed and the title closed the deed was executed to plaintiff Edward 0. Gainsborg, whose interest in the property appears to have been very slight, the real party in interest being his father, Samuel Gainsborg. The policy of title insurance to which this action relates was issued to Edward 0. G-ainsborg, as the owner of the record title. Subsequently he transferred the property to the Empire Development Company and assigned the policy of the title insurance to it.
At the time the contract of sale was executed by Mrs. Andrews’" executors and Capo, certain assessments for local improvements had already become liens upon the property, and proceedings were pending which, in the natural course of events, would result in other liens of like nature. The executors were content to assume and pay the assessments which had become liens at the time of signing the contract, but were not willing to pay any assessments which might thereafter become liens. Accordingly the contract provided that the purchaser
There was pending at that time a proceeding for opening Randall avenue, which ran through the property, and before the title was closed, and on or about February 20, 1907, assessments for this improvement, aggregating $6,094.05 were confirmed and became a lien on the property. The title was closed on April 4, 1907, and thereafter, on April 20, 1907, the elder Gainsborg, or the Empire Development Company, paid the said assessment for the Randall avenue opening, and it is for the sum so paid, with interest, that the plaintiffs sue and have recovered judgment. The title insurance policy was in the usual form and contained a schedule which enumerated the “estates, interests, defects, objections to title, liens, charges and incumbrances affecting said premises ” against which the policy did not insure. In this schedule no mention is made of the Randall avenue assessment which had become a lien before the policy was issued. Under these circumstances the defendant would ordinarily be liable to repay the amount of the assessment, but it claims that under the peculiar circumstances of this case it is not so .liable.
In addition to the cause of action based upon the policy itself, the complaint embraces a cause of action for damages on the ground that defendant had been employed by the elder Gainsborg, and had agreed to act for him in making the contract for the purchase of the property, and had been negligent in permitting the “ subject ” clause, as it is called in the case, and which has already been quoted, to remain in the contract. This cause of action requires but scant consideration since it is unsupported by the proof, and was evidently not considered or acted on by the court at trial term. The defendant’s contention that it is not liable under the peculiar circumstances of this case is based upon the terms of the policy itself, and the
The judgment and order appealed from are, therefore, reversed, and judgment directed for defendant dismissing the complaint upon the merits, with costs and disbursements to defendant in this court and the court below.
Clarke, P. J., McLaughlik, Laughlik and Page, JJ., concurred.
Judgment reversed, with costs, and complaint dismissed, with costs.