McLoughlin v. Miller — 10 N.Y.S. 830

Majority

p. 830

McLoughlin et al. v. Miller.

(Supreme Court, General Term, Second Department.

July 18, 1890.)

Headnote

Covenants against Incumbrances—Breach of—Assessments.

At the time of the execution and delivery of a deed containing a covenant against incumbrances the legislature had passed an act authorizing the improvement of the avenue fronting the property conveyed, and requiring the property along the route to pay $175,000 of the cost, one-twentieth part of which was to be levied and collected in each year for 20 years. Held, that the installments levied after the deed was delivered were not incumbrances within the meaning of the covenant.

Appeal from special term, Kings county.

Action by William R. McLoughlin and another, as executors, etc., of Robert McLoughlin, against Ira O. Miller, to recover money paid by plaintiffs for assessments on property conveyed by defendant’s deed to their testator, with full covenants and warranty. There was judgment for defendant, and plaintiffs appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Tunis G. Bergen, for appellants. Ira O. Miller and Alfred B. Mudge, for respondent.

Ira O. Miller and wife, on the 1st of July, 1872, conveyed a piece of property in the city of Brooklyn to Robert McLoughlin. The deed contained a covenant of warranty against all incumbrances except a mortgage of $1,900. The legislature had, before this, authorized the improvement of Pourth avenue. The property along the route was required to pay $150,000 of the cost of the improvement, one-twentieth part of which was to be levied and collected in each year for 20 years. $175,000 of the cost of the improvement was to be collected in 1870 from the property in the first 12 wards of the city. All taxes and assessments imposed upon the lots in question, before the delivery of the deed, were paid by defendant. The question therefore is, were the installments of the one-twentieth part of $150,000, payable each year, an incumbrance? We think the successive installments, although fixed by the legislature in advance, a part of the tax for the years in which they were collectible, and that they were not liens on the land from the beginning, within the covenant against incumbrances. The tax was fixed so far that a certain sum was to be raised each year, but every year brings its burdens. There are various sums which are required to be annually collected, but the land is not incumbered thereby, until the tax levy is actually made, and such taxes are a lien on the land from the date of the confirmation of the yearly tax levy only. The evidence does not show an assessment for the entire number of yearly payments in 1870. A fair inference from the fact proven is that the first payment only was made a lien on the land. In order to arrive «t the amount of the first payment ail the cost of the work did appear, but it

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was not and could not be collected at once. There was therefore no cause of action proven. Barlow v. Bank, 63 N. Y. 399 . Tlie judgment must therefore be affirmed, with costs. All concur.

Cases cited

Barlow v. Saint Nicholas National Bank 63 N. Y. 399 N.Y. 1875-12-14 p. 831