#### Mary E. Hastings et al., Plaintiffs, *v.*William H. Hastings, Individually and as Executor, Etc., of Sarah Hastings, Deceased, et al., Defendants.

(Supreme Court, New York Special Term,

April, 1899.)

1. "Action for breach of 'covenant against incumbrances — Remedy át - law — Measure of damages. • ,

The usual remedy .upon a • breach ' of a covenant against incumbrances is by an action at law and-therein the grantee may recover nominal damages upon proof of a breach, and the amount of the incumbrance, if he has paid it.

*2452. Same — Equity will not retain the action where the damages' are nominal.

Where, however, he has-paid nothing for or upon judgments which are a lien on the premises, the court will not retain jurisdiction of his legal action for nominal damages in order to afford him equitable . relief against his grantor and the present holder of the-judgments against the grantor although the holder may possibly be in collusion with the grantor in order'to defeat the attempt of the grantee to obtain a discharge or release of the judgments.

- Action upon. a. covenant against incumbrances contained' in a ■ deed.

William H. Blain, for plaintiffs.

William G. Bussey, for defendants William H. Hastings and Jacob A. Mittnacht. . -

Werner, J.

Plaintiffs’ cause of action is based upon a covenant against incumbrances contained in a deed from the defendant William H. Hastings and his wife to the plaintiffs, and upon oral representations alleged' to have been made by said William H. Hastings, to the effect that at the time of the execution and delivery of said deed there were no judgments against him which were liens upon the lands described-in-said deed.

Plaintiffs alleged and proved the breach of.said covenant and representations. There are two judgments in favor of Julia M. Schermerhorn and Mary E. Ci Thebaud against William H. Hastings, amounting to $246.65, which were and are liens upon the interest of the latter in the premises described in the complaint.

The plaintiffs seek equitable relief, and ask, first, that the defendant Mittnacht be compelled to execute a release of said judgments; second, that if said Mittnacht shall be held to be a purchaser in good faith and for value, of said judgments, that the defendant William IT. Hastings be compelled to pay and discharge the same; third, that in the event of the refusal or failure of the defendant William IT. Hastings to secure the satisfaction and discharge of said judgments-the said-trustees and executors pay the same out of the funds in their hands belonging to said defendant William H. Hastings; fourth, that upon the tender to said Mittnacht of the amount due upon said judgments, either by said William H. Hastings or- by said executors and trustees, said Mittnacht execute and deliver proper satisfaction-pieces.

*246The usual and sufficient remedy upon the breach of a covenant against incumbrances is an action at law. In such an action the plaintiff is entitled to recover at least nominal damages upon proof of the breach (Stearn v. Hesdorfer, 9 Misc. Rep. 134), and if the grantee has paid the incumbrance the amount paid is the measure of damages., McGuckin v. Milbank, 83 Hun, 473; Hall v. Dean, 13 Johns. 105.

The judgments herein have not been paid, and hence the plaintiffs’ damages are simply nominal. It cannot ,be contended that a court of equity will retain jurisdiction of a legal action for purely nominal damages, simply because of a defendant’s failure to plead that the plaintiff has an adequate remedy at law. It is only where a plaintiff has a substantial cause of action, which is purely legal, in its character, that a court of equity will retain the jurisdiction, which it has assumed without objection, on. the part of a defendant. The defendants herein have failed to plead that plaintiffs have an adequate remedy at law. But, as the plaintiffs have acquired no right to substantial damages, the question which arises upon this failure to plead is more academic than practical

In the last analysis the plaintiffs are entitled to no relief unless they have made out a case for equitable relief. We do not. think they have succeeded in doing this. There is considerable ground for the suspicion that the defendants Mittnaeht and William H. Hastings are in collusion-.with- each other to defeat the attempts of the plaintiffs to- secure a discharge or release of said judgments. But it is only a suspicion based upon the failure of said Hastings to take' the witness-stand in his own behalf, and to call as a Witness William J. Harrington, for whom Mittnaeht says he. bought said judgment, and upon Mittnacht’s equivocal and guarded attitude in his conversations with the plaintiffs’ attorney. The latter was undoubtedly led to believe that the former was acting in the .interests of William H. Hastings. That is probably the fact, but there is nothing in this that is necessarily inconsistent with Harrington’s *iona fide*ownership of said judgments. Plaintiffs’ -at- • torUey did not ask Mittnaeht whether he. had bought these judgments with his own money or with the money of some other person; He probably considered that a useless formality, .because he asmmed that they, were bought with the money of Hastings. But >e are not at liberty to say that Mittnaeht would not have given correct information as to the ownership of these judgments if he had been asked to do so, nor can we assume in the absence of evi*247deuce upon the subject that Harrington is not a *t>ona fide*assignee thereof. Until the plaintiffs are able to show that the usual legal remedy in such a ease is unavailing, they can establish no right to equitable relief. As the case stand's, therefore, we must conclude, first, that the plaintiffs have no legal cause of action, except for nominal damages; second, that they have no right to equitable relief until they are able to show that the usual remedy at law must fail. The complaint must, therefore, be dismissed, but without costs, for-the reason already suggested — that the reticence and apparent lack of candor on the part of both Hastings and Mittnacht create-an impression amounting almost to a presumption of' collusion.

Let findings and decree be prepared and submitted accordingly.

Ordered accordingly.