142 N.Y.S. 281 | N.Y. App. Div. | 1913
This appeal is from a judgment entered upon the dismissal of the complaint at Trial Term upon, a motion that neither cause of action alleged therein contains facts sufficient to constitute a cause of action. The learned counsel for the appellant states in his printed brief that the second separate cause of action “was abandoned by the plaintiff, and no judicial interpretation thereof was prayed for at the time of the trial.”
I think that the complaint may be sustained as pleading a breach of the covenant of seizin (Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 253), which covenant was broken when Kemmna without title delivered the deed. (Mygatt v. Coe, 124 N. Y. 212, 218.) Negativing the words of such a covenant is sufficient allegation of a breach thereof. (4 Kent’s Com. [14th ed.] 479, citing authorities.) In Rickert v. Snyder (9 Wend. 416) the court, per Savage, Oh. J., say: “The rule as to the assignment of breaches on
The various cases cited by the learned counsel for the respondent may be discriminated in that they present covenants for quiet enjoyment or of general warranty, which, in the language of Savage, Ch. J., in Rickert’s Case (supra), “require the assignment of a breach by a specific ouster, or eviction by paramount legal title.” Although there is the allegation that Kemmna covenanted forever to warrant the title, there is no plea of a breach of such covenant, the allegation may be disregarded as surplusage and the complaint held to charge a breach of covenant of seizin.
It follows that the judgment must be reversed and a new trial granted, costs to abide the event.
Thomas, Carr, Stapleton and Putnam, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.