
    Mary R. H. Glyn, Appellant, v. Title Guarantee and Trust Company, Respondent.
    First Department,
    June 4, 1909.
    Contract—principal and, agent—obligations of title guarantee company — pleading — facts stating action based on negligence — defects in title covered by policy—damages.
    Where a complaint is dismissed at trial before evidence taken it is the same as sustaining a demurrer on the grounds -of insufficiency, and the dismissal is error if the plaintiff is entitled to any recovery upon the facts alleged.
    Where a title guarantee company undertakes to act for the purchaser of lands as. a conveyancer, to examine the title and advise as to its marketability, it is bound to exercise the same degree of care and skill and the same frankness in disclosing the result of the investigation as that required of an attorney.
    The complaint of a purchaser of lands alleging that she employed the defendant, a title guarantee company, to, search the title and that she purchased the property relying upon a letter received from the defendant stating in substance that while the survey showed variations between the location of fences, stoops and record lines, the company could guarantee that the stoop of the building may remain undisturbed so long as it stands, and that the defects cannot affect the marketability of the title, while as a matter of fact she subsequently discovered that certain ornamental accessories of an adjoining building had encroached upon the premises for over twenty years, rendering the title unmarketable, states a cause of action based on the negligence of the defendant.
    A title guarantee company insuring the title to the premises under the circumstances aforesaid is liable upon its policy although it excepted from the contract of insurance “ variations between the location of the fences and stoops and the record lines,” where the exception clause makes no reference to the encroaching ornaments on the adjoining building.
    The plaintiff in such action under a general allegation of damage in a certain sum may prove such damages as are the natural and' legal consequences of the' injury done.
    The measure of damages is the difference between the value of the property when purchased with the encroachments and the value it would have had had there been no encroachments.
    Iegeaham, J., dissented in part, with memorandum.
    ' Appeal "by the plaintiff, Mary E. H. Glyn, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of Decernher, 1908, upon, tlie dismissal of the complaint by direction of the _ court at the opening on .a trial at the New York Trial Term.
    
      Charles Howland Russell, for the appellant.
    
      Harold Swain, for the respondent.
   Scott, J.:

, The complaint was dismissed at the trial before any evidence was introduced. This amounted practically to sustaining a demurrer to the complaint for insufficiency, and was erroneous if, in any aspect, upon the facts stated in the complaint, the plaintiff was entitled to any recovery. (Abbott v. Easton, 195 N. Y. 372.) From the judgment entered upon the -dismissal the plaintiff appeals. The complaint attempts to state two causes of action. It sets forth that in November, 1904, plaintiff contracted to buy from one Weed the premises known as No. 47 East Sixty-fifth street in the city of New York, and ffrom one Goodkind the premises known as'No. 49 East Sixty-fifth street, and “ retained and employed the defendant herein to . search the titles to said premises; ” -that thereafter the defendant certified to plaintiff the title to premises No. 47 East Sixty-fifth street, and said- premises were conveyed- to plaintiff on or about December 1, 1904; that on December 23,. 1904, defendant wrote to plaintiff’s husband that ■ it had completed the examination of the title-to No. .49 East Sixty-fifth street, and that the letter contained the following statement: The survey shows variations between the locations of the fences, stoops and record lines. We can -guarantee, however, that the stoop of the building may remain undisturbed - so long, as, the same stands. ■ Policy will state no title can be insured to any land lying west of the centre of the westerly part, of the party wall and the line in continuation thereof, nor east' of á line parallel with Park Avenue and distant 134 feet westerly. ' Ais there are party walls on both'sides and the lines run through the walls? these cannot affect the marketability of your title. The lines on which we- will insure only differ very slightly from' the deed dimensions. There are no other incumbrances and objections to title, except as above stated; ”. that depefidmg and relying upon said • ■ report-plaintiff took title to said premises No. 49 East Sixty-fifth street; that a long' timé after she had taken title to said premises, plaintiff discovered that the stoop, the door cap and the pilaster of No. 51 East Sixty-fifth street encroached nine inches or more on the said premises No. 49 East Sixty-fifth street, and that the newel post of said stoop of No. 51 East Sixty-fifth street encroached one foot and nine inches on said premises No. 49 East Sixty-fifth street, and that said encroachment had existed for over twenty years, and that' such encroachments rendered the title to No. 49 East Sixty-fifth street unmarketable; that in engaging defendant, to act for her in searching the titles to said premises, plaintiff did not engage the services of a lawyer, but relied entirely upon the defendant, as said defendant well knew; that defendant was careless and negligent and misled plaintiff to her damage.

The second cause of action is based upon a policy of title insurance issued to plaintiff, wherein defendant insured plaintiff’s title to said premises No. 49 East Sixty-fifth street, excepting, however, from its contract of insurance “ variations between the location of the fences and stoops and the record lines, but the stoop of the building on the premises described in Schedule A may remain undisturbed so long as same stands.’-’ The breach off^he policy, as alleged, consists of the same encroachments of the door cap, pilaster, stoop and newel post of No. 51 East Sixty-fifth street, described in the first cause of action.

It will be observed that defendant undertook to act for plaintiff in two capacities — ag a conveyancer, who examined the title and undertook to advise her whether it was good and marketable, and as an insurer, who undertook to insure that slid had a good and marketable title. In the former capacity, the defendant assumed the same responsibilities and owed to the plaintiff the same duty as if it had been an individual attorney or conveyancer.. This involved upon its part the exercise of due care and skill in investigating the title, and the utmost frankness toward the plaintiff in disclosing to her the result of its investigations, and in advising her as to what course she should take in view of the facts which had been discovered respecting the title. It has assumed toward the plaintiff the relation of attorney, and thereby assumed all the obligations of an attorney to his client. (Ehmer v. Title Guarantee & Trust Co., 156 N. Y. 10.) The encroachments upon the property, which were patent upon inspection, and of which the defendant is chargeable with knowledge, consisted apparently of the overlapping upon plaintiff’s premises of the ornamental and non-essential portions of the stoop and portico of the adjoining house, apparently not of á character to found upon it a claim of title to any part of the fee of plaintiff’s premises, but perhaps sufficient for the foundation of a claim to the right of support. Whether such encroachments would in point of fact render plaintiff’s title unmarketable is perhaps a question ( Van Horn v. Stuyvesant, 50 Misc. Rep. 432), but it is apparent that they might to some degree interfere with the free development and improvement of the property, and to that extent might affect its market value. At all events, it was due to the plaintiff that she should be advised of the exact character and nature of the encroachments, to the end that she might be able intelligently to determine whether or not she would accept title to the property incumbered by these encroachments. The only advice or information upon the subject, so far as appears, which the defendant communicated was tliat contained in the letter above quoted. Clearly, that letter was not calculated to convey to the lay mind the true facts of the case. It is true that the letter states that the survey shows variations between the locations of the fences, stoops and record lines. It does not state what these variations are, and What follows in the letter was calculated and no doubt intended to lead plaintiff to believe that whatever variations were found were of slight importance, or of none at all, and did not affect the marketability of the title. This letter falls far short of informing plaintiff of or even suggesting to her the true state of the encroachments upon the property. Upon the complaint as it stands, the first count, as we think, sufficiently alleges negligence and a failure of duty, upon the part of defendant.

The second count seeks to charge defendant upon its contract liability as. insurer, and involves many of the same considerations . which apply to the first cause of action. The policy insures plaintiff against “ any defect or defects of title affecting said premises or affecting the interest of the assured therein,'Stor by reason of unmarketability of the title or by reason of liens or incumbrances at the date of the policy, excepting as the policy might save or exempt.” The encroachments described in the complaint, with the right of continued support so long as they might stand, undoubtedly constituted an incumbrance upon the property referred to in the policy, for they were matters which might interfere with or prevent the free use and improvement of the property by the owner, and which the owner could not at will remove, and they are not in our opinion exempted from the operation of the policy by the words contained in the exemption clause, “ variations between the location of the fences and stoops and the record lines,” for this clause makes no reference to the door cap and pilaster, which also overlap and encroach. It is objected that the complaint does not sufficiently allege damage. It contains as to each cause of action the general allegation that by reason of the premises the plaintiff has suffered damage in the sum of $12,608, with interest. It is true that the plaintiff does not allege in her complaint any facts upon which the amount of her damage can be estimated. It is not necessary that she should do so, for her general allegation of. damage is sufficient to permit proof of such damage as is the naturally and legally presumable consequence of the injury done her. (Laraway v. Perkins, 10 N. Y. 371.) She is entitled to recover the difference between the value of the property when purchased, as it was with the encroachments, and its value as it would have been if there had been no such encroachments. (Kidd v. McCormick, 83 N. Y. 391.) Whether or not there was any such difference is, of course, a matter of proof; but if it should be established that there was a difference, the allegations of the complaint are sufficient to permit its recovery.

The judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.

McLaughlin, Clarke and Houghton, J J., concurred.

Ingraham, J. (concurring):

I do not think that the letter of December 23, 1904, can be treated as giving to the plaintiff an independent cause of action. It ’ was simply a letter that the title had been examined; that a policy would be issued which should insure the plaintiff’s title to the prop erty with certain exceptions;' and the plaintiff’s subsequent acceptance of the policy of insurance issued by the company was an acceptance by the plaintiff of the obligation of the defendant which it assumed by its letter. I think, therefore, the liability of the defendant must depend upon the terms of the policy subsequently issued and accepted by tlie plaintiff, and that a recovery upon the first cause of action could not be sustained.

Upon the second cause of action I am inclined to agree with Mr. Justice Soott that a cause of action was stated, and that it was .error to- dismiss the complaint. I also agree with his statement as to the measure of damages. I, therefore, concur in the reversal of the judgment.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  