117 N.Y.S. 424 | N.Y. App. Div. | 1909
Lead Opinion
, The complaint was dismissed at the trial before any evidence was introduced. This amounted practically to sustaining a demurrer to the complaint for insufficiency, and was erroneous if, in any aspect, upon the facts stated in the complaint, the plaintiff was entitled to any recovery. (Abbott v. Easton, 195 N. Y. 372.) From the judgment entered upon the -dismissal the plaintiff appeals. The complaint attempts to state two causes of action. It sets forth that in November, 1904, plaintiff contracted to buy from one Weed the premises known as No. 47 East Sixty-fifth street in the city of New York, and ffrom one Goodkind the premises known as'No. 49 East Sixty-fifth street, and “ retained and employed the defendant herein to . search the titles to said premises; ” -that thereafter the defendant certified to plaintiff the title to premises No. 47 East Sixty-fifth street, and said- premises were conveyed- to plaintiff on or about December 1, 1904; that on December 23,. 1904, defendant wrote to plaintiff’s husband that ■ it had completed the examination of the title-to No. .49 East Sixty-fifth street, and that the letter contained the following statement: “ The survey shows variations between the locations of the fences, stoops and record lines. We can -guarantee, however, that the stoop of the building may remain undisturbed - so long, as, the same stands. ■ Policy will state no title can be insured to any land lying west of the centre of the westerly part, of the party wall and the line in continuation thereof, nor east' of á line parallel with Park Avenue and distant 134 feet westerly. ' Ais there are party walls on both'sides and the lines run through the walls? these cannot affect the marketability of your title. The lines on which we- will insure only differ very slightly from' the deed dimensions. There are no other incumbrances and objections to title, except as above stated; ”. that depefidmg and relying upon said • ■ report-plaintiff took title to said premises No. 49 East Sixty-fifth street; that a long' timé after she had taken title to said premises,
The second cause of action is based upon a policy of title insurance issued to plaintiff, wherein defendant insured plaintiff’s title to said premises No. 49 East Sixty-fifth street, excepting, however, from its contract of insurance “ variations between the location of the fences and stoops and the record lines, but the stoop of the building on the premises described in Schedule A may remain undisturbed so long as same stands.’-’ The breach off^he policy, as alleged, consists of the same encroachments of the door cap, pilaster, stoop and newel post of No. 51 East Sixty-fifth street, described in the first cause of action.
It will be observed that defendant undertook to act for plaintiff in two capacities — ag a conveyancer, who examined the title and undertook to advise her whether it was good and marketable, and as an insurer, who undertook to insure that slid had a good and marketable title. In the former capacity, the defendant assumed the same responsibilities and owed to the plaintiff the same duty as if it had been an individual attorney or conveyancer.. This involved upon its part the exercise of due care and skill in investigating the title, and the utmost frankness toward the plaintiff in disclosing to her the result of its investigations, and in advising her as to what course she should take in view of the facts which had been discovered respecting the title. It has assumed toward the plaintiff the relation of attorney, and thereby assumed all the obligations of an attorney to his client. (Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10.) The encroachments upon the property, which were patent upon inspection, and of which the defendant is chargeable
The second count seeks to charge defendant upon its contract liability as. insurer, and involves many of the same considerations . which apply to the first cause of action. The policy insures plaintiff against “ any defect or defects of title affecting said premises or affecting the interest of the assured therein,'Stor by reason of unmarketability of the title or by reason of liens or incumbrances at the date of the policy, excepting as the policy might save or exempt.” The encroachments described in the complaint, with the right of continued support so long as they might stand, undoubtedly
The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
McLaughlin, Clarke and Houghton, J J., concurred.
Concurrence Opinion
I do not think that the letter of December 23, 1904, can be treated as giving to the plaintiff an independent cause of action. It ’ was simply a letter that the title had been examined; that a policy would be issued which should insure the plaintiff’s title to the prop erty with certain exceptions;' and the plaintiff’s subsequent acceptance of the policy of insurance issued by the company was an acceptance by the plaintiff of the obligation of the defendant which it assumed by its letter. I think, therefore, the liability of the defendant must depend upon the terms of the policy subse
Upon the second cause of action I am inclined to agree with Mr. Justice Soott that a cause of action was stated, and that it was .error to- dismiss the complaint. I also agree with his statement as to the measure of damages. I, therefore, concur in the reversal of the judgment.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.