| NY | Jun 4, 1942
Plaintiff brought suit to foreclose a purchase money mortgage and, after answer and reply, moved for judgment pursuant to rule 113 of the Rules of Civil Practice and section 476 of the Civil Practice Act. We are concerned with the third affirmative defense and counterclaim which sets up a breach, by the predecessors in title of defendants, including plaintiff's assignor, of covenants of quiet enjoyment and freedom from encumbrances by reason of the fact that there existed across the land at the time of conveyance a private right of way by necessity in favor of an adjoining owner. One Couch at one time owned both defendants' land and that of the adjoining owner. He first conveyed to the adjoining owner, and thereby a way of necessity to a highway, in favor of the adjoining owner, across the land now owned by defendants, passed by the grant. (Brigham v. Smith, 4 Gray [Mass.], 297.) Such an easement constituted a violation of the covenants mentioned *311
above whether or not the covenantee had knowledge of its existence. He was entitled to rely upon the covenants of his grantor. (Callanan v. Keenan,
Triable issues are, therefore, presented with reference to the third affirmative defense and counterclaim.
The judgment of the Appellate Division should be modified by reversal of the order granting summary judgment as to the third affirmative defense and counterclaim, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment accordingly.