Citation Numbers: 8 Misc. 2d 303
Judges: Fanelli
Filed Date: 9/16/1957
Status: Precedential
Modified Date: 2/5/2022
This is a motion by plaintiff to strike out an affirmative defense pleaded in defendant’s answer, because of legal insufficiency (Rules Civ. Prac., rule 109).
The action is based upon a policy of title insurance issued by defendant to plaintiff and poses the interesting question concerning the nature and purpose of such title insurance. The complaint alleges in substance that at the time plaintiff acquired
Defendant in its answer, as well as its brief, admits the aforementioned allegations, but denies that plaintiff has sustained any loss. In the defense, which is now under attack and to which this motion is addressed, defendant urges that the contract of purchase of these premises (signed by plaintiff’s husband, but later assigned to and assumed by plaintiff) provided among other things that the property was sold subject to all assessments and specifically contained the following clause: ‘ ‘ All assessments for recent street improvements, payment of which shall be assumed by the purchaser without abatement of the purchase price.”
Defendant urges that since plaintiff agreed to pay all assessments by virtue of the afore-mentioned contract of purchase, she has accordingly suffered no loss or damage; that she is obliged to do simply what she agreed to do; and that she is now in exactly the same position as if defendant had certified the true facts, i.e., that on the date of the issuance of the policy, there existed special assessments already confirmed and in the nature of a lien. Defendant further contends that the policy of insurance issued by it was an indemnity policy insuring plaintiff against loss or damage, and that if she sustained none, there can be no recovery under it. In support of these arguments, defendant cites the case of Kenerson v. Title Guar. & Trust Co. (100 Misc. 723, affd. 179 App. Div. 898) which was followed in Shechet v. Empire Title & Guar. Co. (Schackno, J., City Court, Bronx County, N. Y. L. J., Nov. 5, 1947, p. 1177, col. 6). However, a careful analysis of these cases leads to the inescapable conclusion that they do not represent the present weight of authority.
The opinion in the Kenerson case (supra) was written by then Mr. Justice Lehman, Supreme Court, Special Term, New York County in May, 1917. In said opinion the court based its
The decision of the Court of Appeals, as afore-mentioned, has frequently been followed and consequently, the court is of the opinion that the decision of Mr. Justice Lehman in the Kenerson case (supra) should not now be followed (see Home Title Ins. Co. v. United States, 50 F. 2d 107, affd. 285 U. S. 191; Holly Hotel Co. v. Title Guar. & Trust Co., 147 Misc. 861, affd. 239 App. Div. 773). “ A policy of title insurance means the opinion of the company which issues it, as to the validity of the title,
Accordingly, in the light of the afore-mentioned, it is the opinion of the court that the second defense herein is insufficient in law and plaintiff’s motion should be and is granted.
Submit order.