
    Seventy-third Street Building Company, Appellant, v. Francis M. Jencks, Respondent.
    
      Breach of a covenant against incumbrances—when broken — it does not run with the-land—measure of damages.
    
    
      A grantee, whose grantor was the grantee in a deed ot the land containing á covenant against incumbrances, cannot maintain an action for a breach of the covenant, as a covenant against incumbrances contained in a deed is broken, if at all, immediately upon the execution and delivery of the deed, and does not run with the land, and as there is no privity of contract between the parties;- but, • if he may maintain such an action; unless it be shown that he has paid some incumbrance upon the land, or that he has been disturbed in his possession of it, he is -entitled only to nominal' damages.- •’
    Appeal by the plaintiff, the Seventy-third Street Building Com- ■ pany, from a judgment of the Supreme Court in favor of the defendant for costs, entered in the office of the clerk of the county of New York on the 28th day of November, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the plaintiff was only entitled to nominal damages for the breach of. a ¡covenant against incumbrances. •
    The incumbrance complained of was a mortgage which was a lien upon six inches of a plot of land conveyed by the defendant to the plaintiff’s grantor, by a deed which contained .a covenant against incumbrances, - ahd did not specify the mortgage in question.. The deed under which the plaintiff derived title. contained a similar eove^ nant, but also omitted to specify the mortgage.
    The plaintiff did not pay the incumbrance, but brought this action to recover the damages which it claimed to- have sustained because of the fact that a person to whom it had contracted to sell ■the premises refused to take title because of the incumbrance, and it was thereafter compelled to dispose of "the-premises at a. lower price than that fixed, in the contract of sale. -
    
      Allen G. N. Vermilya, for the appellant.
    
      Ernest Hall, for the respondent.
   Ingraham, J.:

Assuming that the decision overruling the demurrer is conclusive upon the right of the plaintiff to recover in this action, and that .upon this appeal we cannot determine the question of the right of the plaintiff as a grantee of the property which was conveyed to its grantor by the deed which contained the covenant, we think that the court below was clearly right in holding that the plaintiff was entitled to nominal damages only. The covenant in question was a covenant against incumbrances, and there can be no doubt but that there was a breach of that covenant. That covenant, however, is of such a nature that, if there was a breach, such breach must have existed immediately upon the execution and delivery of the deed. "When the deed was delivered, there was either an incumbrance upon the land in violation of such covenant or there was not. If there was, then there was a breach of the covenant, and a cause of action immediately arose in favor of the grantee in the deed. It is not apparent to me upon what principle a person who was a subsequent grantee of the property to which the covenant related, which wa,s broken when the original deed was delivered, can sue to enforce the covenant. Immediately upon the covenant being broken, a right of action vested in the grantee in the deed which contained the covenant, and that right of action could he enforced against the defendánt. When the grantee in that deed came to sell the property, if it appeared that, in consequence of this incumbrance, he received a less price than he wmuld have received if the incumbrance had not existed, he could have recovered as damages the difference between the price that he actually realized and what he would have realized if there had been no incumbrance upon the .property. That, as I understand it, was distinctly held in the case of McGuckin v. Milbank (152 .N. Y. 302). Hów, then, can the purchaser from such a grantee also sue to recover for the damages that he has sustained because of an incumbrance upon the property which a former owner had covenanted with someone else was not on the property % There was certainly no privity of contract between the parties, and a covenant against incumbrances has never been held to run with the land. This was held in the case of McGuokin v. Milbank (supra), where the court say: “ The plaintiff, upon the proofs, was not bound to indemnify his grantees, and the benefit of the covenant did not pass to them by the conveyances from the plaintiff.” Assuming, however, that the plaintiff in this case stood in the shoes of his grantor as entitled to enforce this covenant, still the measure of damages for a violation of such covenant would not justify a recovery for any of. the items of damage claimed by the plaintiff. The measure of damages in such a case is stated by the Court of Appeals in the case of McGuckin v. Milbank (supra) as follows: “It is the general rule that a grantee under a deed containing a covenant against incumbrances, who has not been disturbed in his possession and who has not paid .the mortgage or other, money lien on the land, is not entitled in an action for the breach of the covenant to recover more than nominal damages.” Now this plaintiff has not paid any incumbrance upon this land. He was not disturbed in its possession, and, therefore, under this rule, as stated,, he' was not entitled to recover more than nominal damages: In this case, as in the McGuclcin v. Milbank case, the plaintiff, neither paid, the claim, nor Was he evicted under it, and upon no principle would he be entitled to recover more than nominal damages.

We think, therefore, that the decision of the court below was clearly right and must be affirmed, with costs.

Wan Brunt, P. J., Rumsey, Williams and Parker, JJ., concurred.

' Judgment, affirmed, with costs.  