
    Russell Meketa et al., Plaintiffs, v. Gertrude Stone et al., Defendants.
    Supreme Court, Special Term, New York County,
    October 15, 1946.
    
      Kurtz & Marzio for defendants.
    
      Lawrence Levinson for plaintiffs.
   O’Brien, J.

Defendants move for summary judgment. The action seeks recovery of damages for breach of covenant of quiet enjoyment. The defense relies on the covenant, which reads: ‘ And the said Landlord doth covenant that the said Tenant on paying the said yearly rent, and performing the covenants aforesaid, shall and may peacefully and quietly have, hold and enjoy the said-demised premises for the term aforesaid, provided, however, that this covenant shall be conditioned upon the retention of title to the premises by the Landlord ” and upon eviction after defendants were divested of title by virtue of a final decree of foreclosure of a tax lien. The plaintiffs demand judgment in their favor upon the ground that the breach of the covenant resulted from the default of the defendants while they had title, enabling their successor to demand and take possession. Defendants rely upon the reference in the opinion in Ganz v. Clark (252 N. Y. 92) to the effect that the covenant there was unqualified and unlimited as to time, regardless of whether at the time of the claimed breach the covenantor was in possession. That would be apposite here if the default resulting in the breach of covenant were not suffered by these defendants while they still had title, whereas the default in the Ganz case (supra) was suffered by the successors in title.

The motion of the moving defendants is denied and judgment granted in favor of plaintiffs, directing an assessment and severing the action otherwise. Settle order.  