Sweet v. Howell

96 A.D. 45, 89 N.Y.S. 21

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1904
• Status: Published

Opinion

Parker, P. J.:

The plaintiff having been actually evicted from so much of the property conveyed to him as was included in the easement and. water rights described in his deed from Sophia Howell, brings this action for a breach of the covenant of seizin and of warranty for quiet enjoyment which such deed contained. Had the title to the whole of the property therein described failed and an eviction followed, his measure of damages would have been the $7,000 paid for such premises and interest thereon. (Jenks v. Quinn, 61 Hun, 434 ; Brown v. Allen, 73 id. 291, 294, and cases there cited; Utica, Chenango & S. V. R. R. Co. v. Gates, 8 App. Div. 182, 183.)

But the title having failed and an eviction followed to the extent only of a portion of the property so conveyed, the plaintiff can recover such part only of “ the original price as bears the same ratio to the whole consideration that the value of the land to which the title has. faffed bears to the value of the whole premises.” (Hunt v. Raplee, 44 Hun, 149, 155 ; Brown v. Allen, 73 id. 294; Giles v. Dugro, 1 Duer, 336.)

The respondent- claims that this rule is not applicable to this case, because it is not one of a “ partial eviction.” With this claim I cannot agree. The easement from the use of which the. plaintiff has been evicted was a part of the real estate conveyed. It formed a material part of the property for which the $7,000 was paid, and by being deprived of its use he has been evicted from a portion of the very real estate that the covenants in such conveyance undertook and promised to secure to him.

Therefore, the authorities above cited are applicable. And though the rule is an arbitrary one, and in many instances far from just, it seems to be controlling in a case like this. The theory of the rule is that when loss occurs through failure, or a partial failure, of title, without the fault of the grantor,.«only the purchase price, or a proper proportion of the purchase price, may be recovered back.

Applying that rule to this case, a manifest error was committed on the trial, both in the admission of evidence offered by the plaintiff and in the submission of the measure of damages to the jury. The jury were told, in substance, that the measure of damages was the difference between the purchase price of the premises, viz., $7,000, and their value without the right to use the spripg. So, also, the plaintiff was allowed to ask his witnesses to this effect: Assuming that the hotel property with the easement annexed was of the value of $7,000 on April 3, 1899, what w;as the fair, market value of that land and property without the easement appurtenant thereto ? To this.rule of damages the defendant constantly objected and insisted that the rule above cited was the proper one to be applied, and to that end he offered to show the value of the hotel property at the time it was conveyed to the plaintiff with the right to use the spring annexed, and also what was its value without the right to use the spring annexed, thus giving the elements from which the value of the whole premises conveyed and of that part to Which the title had failed could be ascertained. With these two facts before the court the rule of damages above cited could be applied; without them it could not be applied. The court, however, excluded all proof of these facts, and for these errors, in my ■opinion, the judgment and order appealed from must be reversed.

All concurred.

Judgment and order affirmed on the facts and reversed on the law and new trial granted, with costs to appellant to abide event.