Sunset Holding Corp. v. Home Title Insurance

242 A.D. 699

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1934
• Status: Published

Opinion

Judgment reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. In our opinion the plaintiff proved a cause of action for damages by reason of defendant’s negligence in the examination of the title in question (Glyn v. Title Guarantee & Trust Co., 132 App. Div. 859), and the complaint should have been amended to conform to the proof. Findings of fact and conclusions of law inconsistent with this decision are reversed. Young, Carswell, Scudder and Davis, JJ., concur; Hagarty, J., dissents and votes to affirm on the ground that the action is on the policy, and that there can be no recovery on that theory. Assuming that the complaint had been amended to conform to the proof setting forth a cause of action for negligence as suggested in the prevailing memorandum, such action would seem to be barred by the Statute of Limitations. Settle order on notice.