229 A.D. 727 | N.Y. App. Div. | 1930
Judgment modified by striking out the following words contained in the last decretal clause, viz.: “ and that by reason thereof the plaintiff has sustained the loss or damage contemplated by and defined in the defendant’s said title insurance policy- and against which the plaintiff was thereby insured; ” and “ Order and Decision ” modified by making the second ordering clause read that the second separate defense is stricken out, and as so modified the declaratory judgment and the “ Order and Decision ” are unanimously affirmed, without costs. The first and third separate defenses in so far as they allege that the plaintiff, with knowledge of want of title in the mortgagor, concealed that fact from the title company when procuring the policy, constitute good defenses. (Empire Development Co. v. Title G. & T. Co., 225 N. Y. 53; Vaughan v. U. S. Title Guaranty & Indemnity Co., 137 App. Div. 623.) The provision in the judgment which we strike out would, if permitted to stand, adjudicate a question that must be the subject of the future trial directed by the Special Term. Present — Lazansky, P. J., Rich, Young, Kapper and Tompkins, JJ. Settle order on notice.
