Opinion
May 23, 1913.
Felix Reifschneider, Jr., for the appellant.
Isaac N. Miller [ Herman G. Loew with him on the brief], for the respondent.
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."
The question presented is one of pleading. ( Coppola v. Kraushaar, 102 App. Div. 306; Staiger v. Klitz, 129 id. 703.) The plaintiff complains in his first cause of action that Johanne Kemmna died intestate in 1910; that the defendant qualified as her administrator; that the said Kemmna, on or about November 30, 1906, executed and delivered to plaintiff a full covenant and warranty deed of certain described premises; that the said deed "contained a covenant, that the said Johanne Kemmna was seized of the said premises in fee simple and had good right to convey the same, and the said Johanne Kemmna, in her said deed, so delivered as aforesaid to the plaintiff, covenanted forever to warrant the title to the said premises;" "that the said Johanne Kemmna, at the time of the execution and delivery of the aforesaid deed to plaintiff, was not seized in fee simple of the premises described in said deed and never had title to said premises and had no right to convey the same. And that on said November 30th, 1906, and for some time prior thereto, one Antoinette F.K. McCauslan was the owner in fee simple of the said premises described in said deed and is still the owner thereof;" "that the said plaintiff at the time of the execution and delivery of the aforesaid deed of said premises, paid to the said Johanne Kemmna, the consideration or sum therefor of Nine hundred Dollars;" "that the plaintiff, by reason of the premises, has sustained damages in the sum of Nine hundred Dollars, with interest thereon from the 30th day of November, 1906," and "that on or about the 22nd day of September, 1910, the plaintiff presented to the defendant for payment, the aforesaid claim, duly verified, and on or about the 6th day of June, 1911, the said defendant rejected said claim and refused to pay the same."
I think that the complaint may be sustained as pleading a breach of the covenant of seizing (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, Ch. J., say: "The rule as to the assignment of breaches on the various covenants in a deed is briefly and correctly stated by Chancellor KENT. 4 Kent's Comm. 479, 2d ed. In the covenant of seisin it is sufficient to allege the breach, by negativing the words of the covenant. The same rule must also apply to the covenant that the covenantor has good right to convey." (See, too, Abb. Forms Pl. 422, n. 1, citing authorities; Woolley v. Newcombe, 87 N.Y. 612.) No eviction is necessary. (5 Ency. of Pl. Pr. 374; Shattuck v. Lamb, 65 N.Y. 510; Rawle Cov. of Title [5th ed.], §§ 58, 62, 69.)
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.