Groat v. Phillips — 10 N.Y. Sup. Ct. 412

Majority

p. 412

EDWIN GROAT, Respondent, v. LUKE PHILLIPS, Appellant.

Headnote

Covenant by husband and wife—when wife not bound by.

This action was brought on a covenant of seizin contained in a deed executed by both husband and wife, the covenant being in favor of both. The action was brought against the husband alone, the complaint alleging that the wife-joined only to release her dower. The defendant demurred, on the ground that his wife should have been made a party to the action. ’ Held, that the demurrer was properly overruled. The covenant did not bind the wife, as the property was not her separate estate; any presumption that it was such, being rebutted by the allegatious of the complaint.

Appeal from an order overruling a demurrer.

JR. JB. JFish, for the appellant.

Z. 8. Westbrook, for the respondent.

Opinion by Learned, P. J.

Present — Learned, P. J., Boabdman and James, JJ.

Order affirmed with ten dollars costs, with leave to defendant to answer within twenty days, upon payment of costs of motion below and of this appeal.