Opinion
June 25, 1951.
Present — Nolan, P.J., Carswell, Adel, Sneed and MacCrate, JJ. [ 199 Misc. 906.]
In an action to recover damages for breach of covenants of quiet enjoyment and against encumbrances contained in a deed of premises conveyed by defendants to plaintiff, the former appeal from an order which denied their motion for summary judgment and granted the cross motion of the plaintiff for the same relief. Order unanimously affirmed, with $10 costs and disbursements. ( Petterson v. Radspi Realty Coal Corp., 264 App. Div. 903, affd. 290 N.Y. 645; Hansen v. Pattberg, 212 App. Div. 49; cf. Junius Constr. Corp. v. Cohen, 257 N.Y. 393, 399.) While summary judgment was properly granted as to the breach of the covenant against encumbrances because of the nature of the encumbrance, plaintiff could not have judgment for damages for breach of the covenant for quiet enjoyment. She has not been removed from any part of the premises and has not shown that there has been any threat to remove her from occupancy of the part of the building within the lines of the proposed street. Scriver v. Smith ( 100 N.Y. 471, 477) is not applicable. In that case it was held there was practically an ouster by the use of an easement by one entitled thereto. The use under that easement rendered impossible the use by the owner of the fee of a portion of the premises subject to the easement.