
    German-American Real Estate Company, App’lt, v. Adolph Starke, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1895.)
    
    ‘Covenant—Mereeb.
    A covenant, in a contract to convey land, to put the vendee in possession, is not merged in the covenants in the deed subsequently given, unless such was the intention of the parties to the deed.
    Appeal from a judgment in favor of defendant.
    
      Edward Grosse, for app’lt; Henry A. Monfort, for resp’t.
   Pratt, J.

In my view, the plaintiff was entitled to recover some damages on the testimony. Starke covenanted with Schuetz not only to sell and convey the premises by warranty deed containing full covenants, on May 26, 1892, but then, except as .against his own privilege of occupancy until July 1, 1892, to give “full possession.” I interpret this as a covenant to put Schuetz in possession as against all the world except himself. This covenant was not necessarily merged in the covenants contained in the deed subsequently delivered. If it was waived or surrendered, it was because of the intention of the parties to the deed. See Disbrow v. Harris, 122 N. Y. 362. But there was no such intention. The "testimony will not justify any such inference. The only suggestion favoring such a motive on the part of Schuetz lies in the fact that Suvdam, being in possession of part of the premises, would be liable for rent as a tenant, or for use and occupation, which rent or use and occupation would inure to Schuetz as grantor under the deed. But that is met and refuted by the attitude of both ■Starke and Schuetz and his assigns ; • for Starke always claimed that Suydam had no right to occupy at all, and the plain fact is that Schuetz and his assigns bought the land only to cut it up into lots, and sell them, with full possession, as a short speculation. Plaintiff was therefore entitled to something for breach of this preliminary covenant. But this point was not definitely presented to the court on the trial. lie was entitled to recover something, but he asked for no such instruction, and the verdict was against him on other issues submitted to the jury. He was in the position of Wilson, Wilson v. Lester, 64 Barb. 431, and, for aught that I can see, must abide by the same terms. Then came the deed, with its covenants for quiet enjoyment and title. I do not see that tliere was any misdirection upon the questions arising under the covenants of the deed. The whole case, therefore, as it seems to me, discloses a' right of recovery for breach of the preliminary covenant to deliver possession as against all the world," including Suydam. But since plaintiff did not ask for any such instruction, he really did not present that point to the court, unless by his motion for a new trial. I think that motion did involve that point, whether he fairly presented it or not. On the whole, I think he was entitled to a new trial, to the end that he might recover something for breach of the preliminary covenant to deliver possession at the time of the delivery of the deed, but on the same terms as in Wilson v. Lester, supra. Perhaps his damages in -that regard would be limited to the reasonable cost of ejecting Suydam, if he was ejectable, and to the reasonable value of the use and occupation of the premises while he remained in possession. He might, also recover further damages on the covenants of the deed, if the jury had found that he held as a tenant under Starke. I do not see that there was any such disclosure of the purpose of the purchase in the first instance as to have brought the speculative profit of the contract or expenses of advertisement for sale, etc., into' contemplation of the parties as damages for breach of this preliminary covenant to deliver possession. Then came the damages dependent upon questions of fact as to the nature of Suydam’s holding. If he was a tenant under Starke, the rules laid down by the learned trial judge would seem to apply. Their application was for the jury. If he was 'not a tenant under Starke, but a mere squatter, the damages for breach of preliminary covenant would be the limit of recovery. But that was for the jury, under proper instructions. Hpon the whole, it seems that the first point of the case, plaintiff’s right of recovery for breach of the preliminary covenant for possession, was not squarely presented to the trial court. Hence the plaintiff’s motion for a new trial ought to have been granted, but only on judgment of costs, as in Wilson v. Lester. He is therefore entitled to a new trial, with costs of this appeal, provided he shall stipulate to pay and shall pay the costs of the trial, including disbursements. Otherwise the judgment should be affirmed, with costs.

Judgment and order denying motion for new trial reversed, and new trial granted, with costs of appeal to the appellant upon his stipulating within twenty days to pay costs of trial and disbursements. In default of such stipulation, judgment is affirmed, with costs.

Dykman, J., concurs. Brown, P. J., concurs in reversal, but votes for a new trial.  