
    ENTWISLE v. MARGOLIES.
    (Supreme Court, Appellate Division, Second Department.
    June 4, 1909.)
    Covenants (§ 97)—Covenant for Quiet Enjoyment—Breach.
    Where a grantee in a deed containing a covenant of quiet enjoyment leased a part of the premises to the grantor, who claimed a right to use a part of the premises by virtue of the lease, and the grantee denied the existence of such rights, the controversy involved the construction of the lease, and did not affect the covenant of quiet enjoyment.
    [Ed. Note.—IPor other cases, see Covenants, Cent. Dig. §§ 130-137; Dec. Dig. § 97.]
    Appeal from Municipal Court, Borough of Brooklyn, Second District.
    Action by Frank L. Entwisle, trustee in bankruptcy of Jacob Kraft, against Samuel Margolies. From a judgment for plaintiff, defendant appeals.
    Reversed, and complaint dismissed.
    Argued before HIRSCHBERG, P. J., and JENKS, GAYNOR, RICH, and MILLER, JJ.
    John H. Steenwerth, for appellant.
    Moore, Ashley & Linton, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   JENKS, J.

The defendant conveyed premises to the plaintiff by deed with covenant of quiet enjoyment. Thereupon the plaintiff leased a part of these premises to the defendant. The plaintiff contends that the defendant thereupon used a part of the premises not leased, and brings this action for breach of the said covenant of quiet enjoyment. The defendant does not assert any title to the premises, or any right of possession therein, as the grantor in that conveyance, or through any other than the plaintiff as his landlord, but asserts that under the lease he was entitled to the use of the part of the premises in question. The dispute arises simply under a lease from landlord to tenant. The conveyance is as much outside of the case as if it had been made by a stranger. It is a mere accident that the present tenant was-once the owner of the premises, and as such conveyed them to his present landlord.

The judgment must be reversed, with costs. All concur.  