Entwisle v. Margolies — 133 A.D. 189

Majority

p. 189

Frank L. Entwisle, as Trustee in Bankruptcy of Jacob Kraft, Respondent, v. Samuel Margolies, Appellant.

Second Department,

June 4, 1909.

Headnote

Beal property—covenant of quiet enjoyment—when action does not lie.

Where a defendant conveyed premises to the plaintiff with covenant of quiet enjoyment and thereupon plaintiff leases part of the premises to defendant, the plaintiff cannot maintain an action for breach of the covenant because defendant used a part of the premises not covered by his lease.

Appeal by the defendant, Samuel Margolies, from a judgment of the Municipal Court of the city of Mew Tork, borough of Brooklyn, in favor of the plaintiff, rendered on the 16th day of February, 19Ó9.

John, H. Steenwerth, for the appellant.

Moore, Ashley & Linton, for the respondent.

The defendant conveyed premises to the plaintiff by deed with covenant of quiet enjoyment. Thereupon the plaintiff leased a part of these premises to the defendant. The plaintiff contends that the defendant thereupon used a part of the premises not leased, and brings this action for breach of the said covenant of quiet. enjoyment. The defendant does not assert any title to the premises or any right of possession therein as the grantor in that conveyance or through any other than the plaintiff as his landlord, but asserts that under the lease he was entitled to the use of the part of the premises in question. The dispute arises simply under a lease from landlord to tenant. The conveyance is as much outside of the case as if it had been made by a stranger. It is a mere accident that the present tenant was once the owner of the premises and as such conveyed them to his present landlord.

The judgment must be reversed, with costs.

Hirsohberg, P. J., G-aynob, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and complaint dismissed, with costs.