Spruce Hill Homes, Inc. v. Brieant

New York Court of Appeals

Spruce Hill Homes, Inc. v. Brieant

43 N.E.2d 56, 288 N.Y. 309, 1942 N.Y. LEXIS 1043

CourtNew York Court of Appeals

DecidedJune 4, 1942

StatusPublished

Cited by9 cases

This text of 43 N.E.2d 56 (Spruce Hill Homes, Inc. v. Brieant) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Spruce Hill Homes, Inc. v. Brieant, 43 N.E.2d 56, 288 N.Y. 309, 1942 N.Y. LEXIS 1043 (N.Y. 1942).

Pincite

Opinion

Per Curiam.

Plaintiff brought suit to foreclose a purchase money mortgage and, after answer and reply, moved for judgment pursuant to rule 113 of the Rules of Civil Practice and section 476 of the Civil Practice Act. We are concerned with the third affirmative defense and counterclaim which sets up a breach, by the predecessors in title of defendants, including plaintiff’s assignor, of covenants of quiet enjoyment and freedom from encumbrances by reason of the fact that there existed across the land at the time of conveyance a private right of way by necessity in favor of an adjoining owner. One Couch at one time owned both defendants’ land and that of the adjoining owner. He first conveyed to the adjoining owner, and thereby a way of necessity to a highway, in favor of the adjoining owner, across the land now owned by defendants, passed by the grant. (Brigham v. Smith, 4 Gray [Mass.], 297.) Such an easement constituted a violation of the covenants mentioned *311 above whether or not the covenantee had knowledge of its existence. He was entitled to rely upon the covenants of his grantor. (Callanan v. Keenan, 224 N. Y. 503; Hymes v. Estey, 116 N. Y. 501, 507, 508; Huyck v. Andrews, 113 N. Y. 81, 85, 89-91; Pennock v. Goodrich, 104 Vt. 134.)

Triable issues are, therefore, presented with reference to the third affirmative defense and counterclaim.

The judgment of the Appellate Division should be modified by reversal of the order granting summary judgment as to the third affirmative defense and counterclaim, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

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Per Curiam.

Plaintiff brought suit to foreclose a purchase money mortgage and, after answer and reply, moved for judgment pursuant to rule 113 of the Rules of Civil Practice and section 476 of the Civil Practice Act. We are concerned with the third affirmative defense and counterclaim which sets up a breach, by the predecessors in title of defendants, including plaintiff’s assignor, of covenants of quiet enjoyment and freedom from encumbrances by reason of the fact that there existed across the land at the time of conveyance a private right of way by necessity in favor of an adjoining owner. One Couch at one time owned both defendants’ land and that of the adjoining owner. He first conveyed to the adjoining owner, and thereby a way of necessity to a highway, in favor of the adjoining owner, across the land now owned by defendants, passed by the grant. (Brigham v. Smith, 4 Gray [Mass.], 297.) Such an easement constituted a violation of the covenants mentioned *311 above whether or not the covenantee had knowledge of its existence. He was entitled to rely upon the covenants of his grantor. (Callanan v. Keenan, 224 N. Y. 503; Hymes v. Estey, 116 N. Y. 501, 507, 508; Huyck v. Andrews, 113 N. Y. 81, 85, 89-91; Pennock v. Goodrich, 104 Vt. 134.)

Triable issues are, therefore, presented with reference to the third affirmative defense and counterclaim.

The judgment of the Appellate Division should be modified by reversal of the order granting summary judgment as to the third affirmative defense and counterclaim, and as so modified affirmed, with costs to the appellant in this court and in the Appellate Division.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment accordingly.

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Bluebook (online)

43 N.E.2d 56, 288 N.Y. 309, 1942 N.Y. LEXIS 1043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spruce-hill-homes-inc-v-brieant-ny-1942.

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