Heneve Holding Corp. v. Louis E. Kleban & Son, Inc.

137 Misc. 397, 241 N.Y.S. 78, 1930 N.Y. Misc. LEXIS 1167

• Court: City of New York Municipal Court
• Decided: March 27, 1930
• Status: Published

Opinion

Evans, J.

The action is for breach of a warranty in a full

covenant warranty deed, under seal, conveying real property. Plaintiff wants this cause put upon the commercial calendar. It claims that the action comes under the head of subdivision (j) of rule IV of the rules of this court, which permits actions “ on a guarantee ” to be put on the commercial calendar. If the cause of action were for damages arising out of a contract for the sale of goods, it could properly be placed on the commercial calendar under subdivision (i) of the rule. There seems to be no provision made on the commercial calendar for any action for damages arising out of a sale of real property. The only way this cause can be put on this calendar is to hold that an action for breach of warranty arising out of a deed for the sale of realty is an action on a guaranty. The words “ warranty ” and “ guaranty ” may, at different times, when loosely used, have similar meanings. But it is quite clear that the phrase, an action “ on a guarantee,” as used in the rule, does not cover the cause at bar.

Motion for reargument granted, and, on the reargument, the original disposition stands.