
    Edward E. Brenen, Plaintiff, v. Charles P. Kelly et al., Defendants..
    (Supreme Court, New York Special Term,
    December, 1899.)
    1. Covenant against incumbrances — Gist of action thereon.
    An action for a breach of a covenant against incumbrances may be maintained although the incumbrance has not been discharged, as the failure of the plaintiff to pay it off goes only to the measure of damages and not to the cause of action.
    2. Same — Payment of tax lien by third party.
    An allegation that the owner of a mortgage, which a grantee of the premises had assumed in his deed, subsequently foreclosed and sold, and that a deficiency remained after the payment of taxes and expenses, and that the said mortgagee agreed with the grantee not to enter judgment for the deficiency, affords no defense to an action upon such a covenant brought by the grantee on the ground that there were1 taxes unpaid when he received his deed, as he still remains liable for the taxes to the person who paid them for him.,
    S. Same — Partial defense, not described as such.
    A defense, entitled as a “ separate and distinct answer to the complaint ”, cannot be treated by the court as presenting a partial defense.
    Issues of law upon demurrer to the matters in the answer set up as and for a “ second separate and distinct answer to the complaint of the plaintiff herein.”
    The nature of the action and the material facts are stated in the opinion.
    Edward E. Brenen, plaintiff, in person.
    Charles W. Dayton, for defendants.
   Giegerich, J.

This action is for a breach of a covenant against incumbrances, based upon the allegations that, at the time of delivery of the deed, there were unpaid taxes upon the property to the amount of $116.86, together with the penalty and interest thereon, for nonpayment. This allegation would disclose an immediate breach of the covenant (Gerard Tit. [4th ed.] 525), and, while the plaintiff’s recovery would depend, as to amount, upon proof that he had paid off the incumbrance, the fact that it is not discharged affects only the measure of damages and does not go to the cause of action. Stearn v. Hesdorfer, 9 Misc. Rep. 134; McGuckin v. Milbank, 83 Hun, 473. Hence, the plaintiff presents a case, and, by his demurrer, the sufficiency of the separate defense to meet that case is the only point left for my determination. This defense is that upon the foreclosure of a certain mortgage, assumed in this deed by the plaintiff, the property conveyed was sold, and that after the payment of the expenses of-sale and of the taxes there remained a deficiency of $714.50, but that, by stipulation between this plaintiff and the mortgagee, it was agreed that no judgment for the deficiency should be entered. The gist of the defense is that since the taxes have been paid by a third party, who has agreed not to enter judgment, as he was entitled to do, for the amount, the plaintiff was "not injured by the existence of the lien for the taxes, but I cannot hold this to be the necessary result. In effect, the taxes were paid for the plaintiff’s account and he was to respond to the party paying them. If he was released thereafter and gave nothing for the release it was nudum pactum and his liability still subsists; if he gave consideration. for the release the payment of the taxes was his payment unless the extent of the plaintiff’s bargain with this third party is to be proven for the benefit of the defendants, a proposition which I am not wholly prepared to concede. Assuming, however, that the plaintiff may only recover from the defendants the consideration which he gave to procure the discharge of the taxes, the matter alleged goes only to the quantum of the damages, and thus was to be pleaded, if at all, as a partial defense and tested as such (Code Civ. Pro., § 508), but the allegations are presented specifically as a separate and distinct defense to the cause of action, and their sufficiency to present a partial defense is not before me. Thompson v. Halbert, 109 N. Y. 329. Demurrer sustained, with costs, with leave to amend upon payment of costs within twenty days.

Demurrer sustained, with costs, with leave to amend within twenty days.  