Roberts v. Larsen

In an action brought by plaintiffs to recover damages for breach of a covenant against incumbrances contained in defendants’ deed conveying certain real property to plaintiffs, the judgment is affirmed, with costs. No opinion. Lazansky, P. J., Hagarty, Carswell and Johnston, JJ., concur; Adel, J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: The plaintiffs’ claim is based upon two causes of action. The first is for damages for breach of the covenant against incumbrances contained in the deed conveying the real property; and the second is for fraud. Upon the trial the court charged the jury, in substance, that if the building upon the property conveyed was constructed in violation of the Building Code and the Zoning Resolutions of the City of New York, such violation constituted a breach of the covenant against incumbrances. This was error requiring a new trial. (Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; Leerburger [881] Watson, 75 Misc. 3; affd., 157 App. Div. 915; affd., 213 N. Y. 662; Woodenbury Spier, 122 App. Div. 396.)