Lewy v. Clarke Avenue, Inc.

128 Misc. 16, 217 N.Y.S. 185, 1926 N.Y. Misc. LEXIS 1068

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 24, 1926
• Status: Published

Opinion

Per Curiam.

Judgment unanimously reversed upon the law, with thirty dollars costs to appellant, and complaint dismissed, with appropriate costs in the court below.

During the trial the court properly held that the case did not • establish any fraud. In disposing of the requests to charge, the court in effect held that there could be no recovery upon an express warranty, as such a warranty had to be in writing. The case was left to the jury upon the theory of an implied warranty. This was error. Upon the sale of real property the rule of caveat emptor applies. (27 R. C. L. 668, § 431.)

In the absence of a covenant, this applies even to a question of title, and hence must apply to a question of the condition of the property. No implied covenant arises from a conveyance of real property. (Real Prop. Law, § 251; Logan v. United Interests, Inc., 236 N. Y. 194, 197; Murray v. Smith, 1 Duer, 412, 427, 428.)

Present, Cropsey, MacCrate and Lewis, JJ.