Opinion
May 2, 1917.
Charles C. Annabel [ James O. Sebring of counsel], for the appellant.
Frank A. Bell, for the respondent.
This is an action for a breach of covenant of a deed from defendant to plaintiff. In such an action the plaintiff must stand on the deed itself. His deed by reference to other deeds in his chain of title clearly indicates that the Updike lot was excluded. In construing his deed, all other deeds to which it refers and which refer to each other are required to be considered. ( Grandin v. Hernandez, 29 Hun, 399, 402; French v. Carhart, 1 N.Y. 96.) The plaintiff has received exactly what his deed in connection with other deeds to which it refers purports to give him. If he had brought his action for fraud or mistake, the excluded evidence would be quite material, but standing as he does on his conveyance and alleging a breach of covenant therein contained and there being no uncertainty or ambiguity as to the land actually conveyed, conversations and negotiations between the parties were properly excluded. I think, therefore, the excluded testimony was immaterial.
The judgment should be affirmed, with costs.
All concurred, except KELLOGG, P.J., dissenting; SEWELL, J., not sitting.
Judgment affirmed, with costs.