
    Walter C. Low, as Trustee of Katonah Construction Company, Bankrupt, Respondent, v. Henry E. L. Buttner, as Executor, etc., of Christina Fischer, Deceased, Appellant.
    First Department,
    June 28, 1912.
    Real property — breach of covenants in deed—sufficiency of complaint.
    A complaint in-an action by a trustee in bankruptcy against an executor averred that the defendant’s testatrix was the owner of certain described premises which were conveyed to her by one H.; that she conveyed said premises by deed containing covenants that she would forever warrant the title to said premises; that she would procure any further necessary assurance of title; that by a change in the description of the said premises and by error or omission all the premises mentioned in the deed from H. to her were not conveyed; that her grantees conveyed the said premises to a third person who conveyed them to the bankrupt, and that during the lifetime of defendant’s testatrix a demand was made upon her that she “execute or procure further necessary assurances of title to said premises,” and that after her death a like demand was made upon the defendant.
    
      Held, that the complaint failed to state a cause of action, since there was no averment tending to show that the defendant’s testatrix agreed to, intended to, or that the parties understood that she in fact did convey all of the premises conveyed" to her by H.; the averment that she conveyed said premises is.negatived by the averment that by a change in the description and by error or omission all of said premises was not conveyed.
    Appeal by the defendant, Henry E. L. Buttner, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1912, granting the plaintiff’s motion for judgment on the pleadings.
    
      
      Robert S. Patterson, for the appellant.
    
      C. L. Apfel, for the respondent.
   Miller, J.:

It is urged that the answer is frivolous for denying knowl- . edge or information sufficient to form a belief as to matters of public record. Even -if that contention were otherwise well founded, it cannot prevail in this case for the reason that some of the facts which the defendant thus attempted to put in issue are not matters of public record. But the motion should have been denied for still another and equally conclusive reason, i. e., that the complaint fails to state a cause of action. The action is brought by a trustee in bankruptcy against an executor. It is averred that the defendant’s testatrix was the owner of certain described premises, which were conveyed to her by one Mary Heinzelman; that she conveyed said premises to Meyer Loeb ahd Simon Loeb by deed containing a description which is quoted; that said deed contained the following covenants:

“1, That the said Christina Fischer will forever warrant the title to said premises.
“ 2. That the party of the first part will execute or procure any further necessary assurance of the title to said premises; ” “ That by a change in the description of the said premises, and by error or' omission, all the premises mentioned in said deed from Mary Heinzelman to Christina Fischer were not conveyed in the deed from Christina Fischer to Meyer Loeb and Simon Loeb;” that “said Meyer Loeb and Simon Loeb, together with Carrie Loeb and Fannie Loeb,” afterwards con-; veyed the said premises to one Louis Miller, who, “ together with Helen B. Miller,” conveyed them to the' bankrupt; that, during the lifetime of the defendant’s testatrix, a demand was made upon her that she “ execute or procure further necessary assurance of title to said premises,” and that, after her death a like demand was made upon the defendant.

There is no averment in the complaint tending to show that the defendant’s testatrix agreed to, intended to, or that the parties understood that she in fact did,-convey all of the premises conveyed to her by Mary Heinzelman. One averment of the complaint is that she conveyed the said premises, and that is negatived by an averment that by a change in the description and by error or omission, all of said premises was not conveyed. But something more than that is required to state a cause of action. For aught that appears, the said covenants relate exclusively to the premises specifically described in the deed from her to Loeb.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  