Smith v. Terrell

268 A.D. 885, 50 N.Y.S.2d 908, 1944 N.Y. App. Div. LEXIS 4035

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1944
• Status: Published

Opinion

In an action brought pursuant to article 15 of the Real Property Law, order denying motion of plaintiff for judgment on the pleadings as to the second cause of action or, in the alternative, to strike out paragraphs “ Tenth ” and “ Eleventh ” from the answer, modified on the law and the motion granted to the extent of striking from the “ Eleventh ” paragraph so much thereof as reads: “ is an attorney-at-law, who has practiced his said profession in the State of New York with offices at Riverhead, Long Island, for upwards of fifteen years, that he has specialized in said practice in the conveyance of real property and the searching of titles on real property in and about the Town of Riverhead, Long Island, and that he ”. As so modified, the order is affirmed, without costs. The absence of express reference in the covenant to the parties bound thereby does not, as a matter of law, render it a personal one. (Davis v. McCarthy, 131 App. Div. 755; Wilmurt v. McGrane, 16 App. Div. 412; Dexter v. Beard, 130 N. Y. 549.) Plaintiff cannot be charged with actual knowledge merely because he is an attorney and has specialized in the searching of titles, although that subject may be a source of inquiry as to his knowledge, an element with which this appeal is not concerned. Close, P. J., Hagarty, Cars-well, Johnston and Adel, JJ., concur.