Ogilvie v. Lightstone

1 Daly 127

• Court: New York Court of Common Pleas
• Decided: February 15, 1861
• Status: Published

Opinion

By the Court.

Daly, F. J.

The plaintiff gave a 'deed of warranty of title and a covenant that the land was free from incumbrances, except an outstanding lease, which had two years and seven months to ran. If the lessee, as alleged in the answer, tore down the house before her term expired, the defendant, as the owner of the reversion, had his remedy against her in an action for waste (1 Just., 53 ; Kerr’s Action at Law, 93); or if she had the right to take the house away, then his remedy was upon the covenant in the plaintiff’s deed.

The agreement bears date after the deed, but is alleged in the answer to have been executed before the deed was delivered. It provides that whatever sum or sums of money may be required to obtain possession of the house and lot from the lessee on the first day of May, 1859 (the day of the expiration of the lease), it shall be deducted from the note given by the defendant to the plaintiff as part of the consideration. It is unnecessary to inquire whether this agreement was or was not merged in the deed subsequently given; for, treating it as collateral and independent, no liability on the part of the plaintiff has accrued under it. The house having been taken away or destroyed by the lessee before the first of May, 1859, no sum of money could be required to obtain possession of it on that day or afterward, or at least it is not allege-d that any sums of money were expended for such a purpose. The error of the defendant consists in supposing that he would be entitled to deduct from the note, under the agreement, the value of the house carried away or destroyed by the lessee. Mo provision for anything of that kind exists in the agreement. His remedy for that act, as I have suggested, is against the lessee, if she had no right to take the building away, or if she had, against the plaintiff upon his covenant, and there is nothing in the answer to show a breach of that covenant on his part. For all that appears jn the answer, the lessee may have removed the building without any right, in which case the remedy is against her. The judgment at the special term therefore was correct.

Judgment affirmed.