Roberts v. Larsen — 290 N.Y. 186

Majority

p. 186

Toy T. Roberts et al., Respondents, v. Peter Larsen et al., Appellants.

Argued January 12, 1943;

decided March 11, 1943.

Irving Ginsberg for appellants.

p. 187

Jerome O. Ellis for respondents.

The motions for dismissal of the cause of action for breach of the covenant against encumbrances were properly denied in view of the undisputed proof of actual encroachments tending to establish that cause of action. Consequently the exceptions of the defendants to the denial of these motions are not sufficient to raise the question whether breach of such a covenant can be predicated on the necessity for repairs or alterations to conform a structure to building laws, and we express no opinion thereon.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.