Campbell v. Stokes

PRATT, J.,

(concurring.) All parties concede that if Moore v. Appleby, 108 N. Y. 237, 15 N. E. Rep. 377, decided in 1888, is still the law, the plaintiff must fail. But in his behalf it is argued that by Townshend v. Frommer, 125 N. Y. 446, 26 N. E. Rep. 805, decided in 1891, the case of Moore v. Appleby is overruled, and that by the latter decision the plaintiff is entitled to recover. This view was ineffectually urged upon the court below. In reply it was well said that, as the former decision was not expressly overruled, we are not at liberty to regard it as overruled if any distinction can be found in the two cases. •It is enough to say upon this appeal that as the cases now stand the question involved is not so free from doubt as to justify this court in requiring a purchaser to accept the title. , It may well be that the court •of appeals saw some clear distinction between the two cases, but failed to point it out in the opinion. Judgment affirmed, with costs.