Rosenzweig v. Kitt — 108 N.Y.S. 1010

Majority

p. 1010

ROSENZWEIG v. KITT.

(Supreme Court, Appellate Term.

March 5, 1908.)

Headnote

Exchange of Property—Construction of Contract—Warranty—“All Personal Property Belonging to the Parties.”

Where a contract for exchange of real property contains a clause providing that chandeliers, gas fixtures, ranges, and “all personal property belonging to the parties” on the premises are included in the mutual warranty of title, the words quoted being written in a blank in the printed form, the written words must be construed as relating only to chattels not specifically enumerated, and the warranty is broken if title to .the enumerated chattels fails.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Carrie Rosenzweig against George Kitt. From a judgment for' defendant, plaintiff appeals. Reversed.

Argued before GILDERS.LEEVE, P. J., and BISCHOFF and MacLEAN, JJ.

Sternberg & Jacobson, for appellant.

Morris Cooper, for respondent.

The contract between the parties for the exchange of real estate contained the clause:

“The chandeliers, gas fixtures, ranges, heating and hot water apparatus, water-closets, bathtubs, and other plumbing, and all personal property belonging to the parties now on said premises are to be included in the sale and in the warranty above set forth.”

The words “and all personal property belonging to the parties” were written in a blank space provided, the other words being part of the printed form; and the question presented by the plaintiff’s action for the value of two ranges, title to which was, as it developed, not in the defendant, turns upon the meaning to be given to these written words. As we read the contract, the intention of the parties was that title to the enumerated chattels was warranted; otherwise, the clause would be made to contain words of apparently solemn import, but with absolutely no meaning. The “warranty” which was to cover these chattels was a warranty of title, and nothing else, as appears from the preceding provisions of the contract; yet, if the written words are to characterize the whole clause, the parties only warranted title to specified things upon the condition that they had title. Such a construction leads to some absurdity, and the reasonable meaning of the clause, giving effect to all of its provisions, is, as we take it, that the words “all personal property belonging to the parties” related to chattels not directly classified, and as to the ownership of which there might be some question of doubt. It may be observed that the clause was for a mutual warranty and that the language was chosen by both parties. The words were written in upon a space left apparently for the addition of further property; and, since harmony of meaning is reached only by a construction

p. 1011

of the contract which limits these words to this purpose, such must properly be taken to have been the intention of the parties.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.