Brenen v. Kelly
New York Supreme Court
Issues of law upon demurrer to the matters in the answer set up as and for a “ second separate and distinct answer to the complaint of the plaintiff herein.” The nature of the action and the material facts are stated in the opinion.
1Opinion of the CourtGiegerich, J.
This action is for a breach of a covenant against incumbrances, based upon the allegations that, at the time of delivery of the deed, there were unpaid taxes upon the property to the amount of $116.86, together with the penalty and interest thereon, for nonpayment. This allegation would disclose an immediate breach of the covenant (Gerard Tit. [4th ed.] 525), and, while the plaintiff’s recovery would depend, as to amount, upon proof that he had paid off the incumbrance, the fact that it is not discharged affects only the measure of damages and does not go to the cause of action. Stearn v.…
2Cases cited3 opinions
- Thompson v. . HalbertNew York Court of Appeals · 1888
- Stearn v. HesdorferNew York Court of Common Pleas · 1894
- McGuckin v. MilbankNew York Supreme Court · 1895
3Cited by1 opinion
- Blumenfeld v. StineNew York Supreme Court · 1904