Title Ins. v. Bach — 90 N.Y.S. 350

Majority

p. 350

TITLE INS. CO. OF NEW YORK v. BACH.

(Supreme Court, Appellate Term.

November 10, 1904.)

Headnote

1. Breach of Covenant—Suit by Assignee—Proof of Assignment.

Where, in an action for a breach of warranty in a deed, instituted by an assignee of the grantee in the deed of the cause of action, the answer specifically denied the assignment, the assignee, to recover, must prove an assignment.

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

Action by the Title Insurance Company of New York against Meyer Bach. From a judgment for plaintiff, defendant

Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and FITZGERALD, JJ.

Lewis Johnstqn and Thomas F. Keogh, for appellant.

Landon Ingraham, for respondent.

Upon the 10th day of February, 1902, the de-

fendant conveyed to Samuel Laubheim and others certain real property in this city, the covenant in the deed being “that the said premises are free from incumbrances, except as aforesaid.” The

p. 351

exception referred to consisted of two mortgages and a lease. The plaintiff herein claims to be the assignee of the grantees in said deed of the alleged cause of action set up in the complaint in this action. Asserting that at the time of the delivery of the deed to its assignors the premises were subject to a lien for certain unpaid croton water .rents amounting to $161.84, this suit was-brought to recover said amount. The answer denies the material allegations of the complaint, and specifically denies that the cause of action herein had been assigned to this plaintiff. No assignment was proven upon the trial, and, as the plaintiff’s standing in court exists by virtue of the assignment, this defect in proof requires a reversal of the judgment.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.