Doonan v. Killilea , 149 N.Y.S. 832 ( 1914 )

Crane, J.

On the 15th day of April, 1913, the defendants conveyed the premises in question, to the plaintiff s' hy deed covenanting ‘ ‘ that said premises are free from incumbrances.”

Under section 253 of the Beal Property Law such a covenant means that the property is free, clear, discharged and unincumbered "of and from all charges, assessments and incumbrances of what nature or kind soever.

Ah assessment upon this property was confirmed by the Supreme Court on the 16th day of December, 1912, and entered into the records of the collector of assessments and arrears on the 11th day of April, 1913.

The plaintiffs have paid this assessment amounting to $888.69, and bring this action to recover the' sum from the defendants on the ground that it was a charge upon the land at the time of the conveyance, and constitutes a breach of the covenant mentioned.

The defendants have demurred to the complaint claiming that by section 1017 of the Greater Hew York Charter such assessment did not become a lien until ten days after the entry in the collector of assessments ’ books, or April 21, 1913, six days subsequent to the date of delivery of the deed.

Reliance for this demurrer is placed upon Ryan v. Domestic Realty Co., 85 Misc. Rep. 449, which is supposed to follow Real Estate Corporation v. Harper, 174 N. Y. 123. In the latter case the confirmation of the commissioner’s report was not had until after the giving of the deed so that it is not in point. True, the opinion is broader and goes further than the question before the court, but it is the point decided which constitutes the authority, and not the language of the court. People ex rel. Unger v. Kennedy, 207 N. Y. 545. This must be so, as it is impossible, in writing upon a given question, to foresee all the facts which may thereafter arise to which the language will be applicable.

As the Real Estate Corporation case refers with approval to De Peyster v. Murphy, 66 N. Y. 662, and Lathers v. Keogh, 109 id. 583, I cannot consider theSe cases overruled. Their determination is conclusive upon this case as the confirmation of an assessment was held to be a charge within the meaning of a covenant against incumbrances, although the lien in behalf of the city did not attach until the entry of confirmation in the street commissioner’s record.

If it was the intention of the Court of Appeals in the case in 174 New York to overrule the De Peyster and Lathers cases it could and should have said so as plainly as was stated in Fitzwater v. Warren, 206 N. Y. 355; Wheeler v. State of New York, 233 U. S. 434, 440.

I cannot believe that the court tried to make a distinction where none existed for the purpose of avoiding the logical conclusion. Court of Appeals decisions are not merely for the parties interested, but for the bar at large as the final statement of the law. Such statements should, not leave judges and lawyers in doubt as to whether cases referred to in the opinion are approved or overruled. .

For this reason I shall presume that the rule of the De Peyster and Lathers cases is still- the law,- and, being applicable here, requires the overruling of the demurrer, as the complaint states a good and sufficient cause of action.

Demurrer overruled, without leave to answer over, and judgment rendered for the plaintiff, as prayed for in the complaint, with costs.

Demurrer overruled, with leave to answer over, and judgment for plaintiff, with costs.