
    SIMON v. NEEF.
    (Supreme Court, Appellate Division, Second Department.
    December 19, 1913.)
    Mortgages (§ 415)—Foreclosure—Counterclaim—Breach of Covenant of Deed.
    A deficiency judgment being asked against defendant in mortgage foreclosure, he may counterclaim for breach of the covenant of plaintiff’s deed against incumbrances.
    [Ed. Note.—For other eases, see Mortgages, Cent. Dig. §§ 1210-1224; Dec. Dig. § 415.*]
    Appeal from Kings County Court.
    Action by Lena Simon against Catherine A. Neef. From an adverse order, defendant appeals.
    Reversed.
    Argued before JENKS, P. }., and THOMAS, CARR, RICH, and PUTNAM, JJ.
    Raphael Link, of New York City, for appellant.
    A. Sidney Galitzka, of Brooklyn, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   JENKS, P. J.

This appeal is from an order of a County Court that grants judgment on the pleadings in a foreclosure of a mortgage on realty and appoints a referee to compute. The. sole question for consideration arises upon the counterclaim of the defendant mortgagor, against whom a deficiency judgment is asked. She pleads that the deed of conveyance, among other things, contained a covenant on the part of the plaintiff that the premises were free from all incumbrances ; that, on information and belief, at the time of the conveyance the premises were not free, but that the title then and theretofore was and now is in the city and the state of New York; that the premises were originally land under water, which have been filled in; that the Supreme Court of this state has decided that a title substantially similar was defective, and not in the owners of record, but in the said city and state; that for the foregoing reason, and others, the title attempted to be granted and conveyed by the plaintiff was wholly defective and valueless; that the plaintiff has not warranted and defended the title to his defendant, but, on the contrary, the said city and state at the times aforementioned have the superior and paramount title. She asks for damages, and asserts her willingness and ability, and makes the offer to place the plaintiff in statu quo, to deliver up the premises, and to convey them with all the right, title, and estate granted by the plaintiff to her.

I think that the counterclaim should not have been disregarded. Shire v. Plimpton, 50 App. Div. 117-122, 63 N. Y. Supp. 568; Merritt v. Gouley, 58 Hun, 372, 12 N. Y. Supp. 132; Wiltsie on Mortgage Foreclosures, § 447; Merchants’ Nat. Bank v. Snyder, 52 App. Div. 612, 65 N. Y. Supp. 994. The reasons are well stated in Shire v. Plimpton, supra, and need not be restated. It is quite- true that when a purchaser has possession under the deed he cannot defend on defect of title, save in case of fraud or failure of consideration (McConihe v. Bales, 107 N. Y. 404, 14 N. E. 285), for the reason that the court would not arrest the action on the debt so long., as the debtor was not evicted (Platt v. Gilchrist, 3 Sandf. 118; Dunning v. Leavitt, 85 N. Y. 30-36, 39 Am. Rep. 617, and cases cited). But we are considering a counterclaim in an action where a personal claim is asserted against this defendant. The cardinal rule of equity is to dispose at one time of all the causes of action “between the same parties arising from the same subject-matter.” General Underwriting Co. v. Stilwell, 139 App. Div. at 190, 123 N. Y. Supp. 653.

We are cited to our decision in Kouwenhoven v. Gifford, 144 App. Div. 355, 128 N. Y. Supp. 1129. I may say, in the words of Chase, J., in Cassada v. Stabel, 98 App. Div. 605, 90 N. Y. Supp. 536:

“Each, case must be determined after a careful consideration of the facts upon which a breach of the covenant is claimed.”

I advise that the order be reversed, with $10 costs and disbursements. All concur.  