
    William H. Kouwenhoven, Respondent, v. Electa Gifford and Others, Defendants, Impleaded with Augusta L. Brindley (Formerly Augusta L. Bettels), Appellant.
    Second Department,
    April 21, 1911.
    Mortgage — foreclosure — counterclaim — breach of covenant against incumbrances — appeal to Court of Appeals — terms.
    Where in an action to foreclose a purchase-money mortgage brought by an assignee, the grantee of the owner of the equity sets up as a counterclaim certain alleged breaches of a covenant against incumbrances contained in the deed from the mortgagee, but it appears that the grantee is in undisturbed possession; that no action is pending for possession by an adverse claimant, and that the alleged defects in title do not amount to a total failure of consideration, and there is no allegation in the answer of fraud in the sale of the premises; that the owner had lost the land in whole or in part, or that he had suffered any damage by breach of the covenant, the grantee is not entitled to a trial upon the counterclaim. A judgment on the pleadings in favor of plaintiff will be affirmed.
    However, an appeal to the Court of Appeals will be granted the appellant upon such terms as would have enabled her to obtain a stay upon an appeal from a judgment of foreclosure.
    
      Motion by the defendant, Augusta L. Brindley, for leave to appeal to the Court of Appeals.
    
      Gates Hamburger, for the motion.
    
      Edwin G. Wright, opposed.
   Jenks, P. J..:

The motion for leave to appeal to the Court of Appeals is granted. Our affirmance in this case was without opinion (143 App. Div. 913). We thought that the well-considered opinion of the Special Term, Crane, J., presiding, was sufficient. We agreed with the reasoning thereof save with the entire expressions as-to the counterclaim. The defendant urged her right to ' trial in this action upon that counterclaim on the authority of Herb v. Metropolitan Hospital (80 App. Div. 145). But the defendant mortgagor (grantee of the owner of the premises) appeared as in undisturbed possession. It did not appear that an action was pending for possession by- adverse claimant, or that the alleged defects amounted to total failure of consideration. There was no allegation of fraud in the sale of thé premises. There was no -allegation that the owner had lost the -land- in whole or in part. The owner apparently had exercised a full and an unrestricted ownership, as was indicated by the practical improvements made. It did not appear that any specific damages had been sustained. We thought, therefore, that the - appeal, whereby it was sought to have trial upon the counterclaim as, pleaded, should not prevail. (See Jones Mort. §§ 1502, 1503.) Of course, our conclusion did not affect the right of separate action. Nevertheless, we have decided to permit an appeal from the order, upon such terms as would have enabled the appellant to obtain a stay upon appeal from a judgment of foreclosure herein.

Burr, Thomas, Carr and Woodward, JJ., concurred.

Motion for leave to appeal to the Court, of Appeals granted, provided that the appellant, within ten days, give the same kind of security as is required, by the Code of Civil Procedure on an appeal from the judgment herein. Settle order before the presiding justice.  