Herb v. Metropolitan Hospital & Dispensary
Appellate Division of the Supreme Court of the State of New York
Appeal from Special Term, New York county. Mortgage foreclosure by Lilly Herb against the Metropolitan Hospital & Dispensary of New York. From a judgment for plaintiff, defendant appeals.
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Appeal from Special Term, New York county. Mortgage foreclosure by Lilly Herb against the Metropolitan Hospital & Dispensary of New York. From a judgment for plaintiff, defendant appeals. The action was brought for the foreclosure of a mortgage upon real estate upon which it was alleged in the complaint there was due and owing the sum of $2,000, and interest thereon at the rate of'5 per centum per annum from the 27th day of December, 1900. The answer contained no denial of any of the allegations of the complaint, and consequently the same were admitted, but it interposed a counterclaim for…
1Opinion of the CourtLaughlin, J.
The allegations of the answer sufficiently show a breach of the plaintiff’s covenant against incumbrances,. and we do not understand that this is- questioned by the respondent, whose contention is that the appellant cannot recover more than nominal damages for the breach without showing expenditure of money on account of the alleged incumbrance. His contention is not tenable. There was an immediate breach of the covenant, and the appellant was entitled to recover the difference between the value of the premises with and without the encroachment. Huych v. Andrews, 113 N. Y. 81, 20 N. E. 581, 3…
Also in this document: Concurrence.
2Cases cited25 opinions
- Huyck v. . AndrewsNew York Court of Appeals · 1889
- Wheelock v. . LeeNew York Court of Appeals · 1878
- People v. . Albany Susquehanna R.R. Co.New York Court of Appeals · 1874
- MacKellar v. . RogersNew York Court of Appeals · 1888
- Bennett v. Edison Electric Illuminating Co.New York Court of Appeals · 1900
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3Cited by1 opinion
- Jacob v. SchiffNew York Supreme Court · 1913