#### William Fehlhaber, Appellant, *v.*Adolph Fehlhaber, Respondent.

(Supreme Court, Appellate Term, First Department,

March, 1913.)

Deeds — action for breach of covenant — covenant against incumbrances — amount of damages—recovery of expenses for removing encroachments.

Defendant, by a full covenant and warranty deed, conveyed to plaintiff, his co-tenant, his one-half interest in certain real estate *“*free from all incumbrances.” In an action for breach of the covenant, it appeared that a building on the property conveyed substantially encroached on adjoining property and that plaintiff removed the same at his own expense and he demanded judgment against defendant for one-half the amount of such expense. Held, that a judgment in defendant’s favor, under a ruling that the fact that some part of the land conveyed encroached on adjacent property did not constitute a breach of the covenant against incumbrances, would be reversed; that plaintiff was entitled to recover the expense incurred in removing the encroachment provided it did not exceed the purchase price, with interest.

. Appeal by plaintiff from a judgment of the Municipal Court of the city of New York, borough of the Bronx, first district, rendered in favor of the defendant.

Eugene L. Brisach, for appellant.

Respondent filing no brief.

Seabury, J.

The plaintiff and defendant were each the owners of one-half of the certain parcel of real estate known as lots Nos. 97 and 98 on the map of Seneca park on Tieman avenue, in the borough of the Bronx. The defendant, by a full covenant and warranty deed, conveyed to the plaintiff bis one-half interest in the property in question, and warranted that *150said interest was “ free from all incumbrances.” The evidence shows that a building on the property conveyed encroached on the adjacent property on the north one and forty-nine hundredths feet and on the south one and forty-one hundredths feet, and that a cesspool attached to the building encroached on the adjacent property one and one-half feet. The plaintiff offered evidence to show that the difference in value of the premises with the encroachments and with the encroachments removed was $1,200. The complaint was oral, and the plaintiff’s bill of particulars, set forth that by reason of said encroachments plaintiff was compelled to remove the building, at a cost to'him of $600, and demanded judgment against the defendant for $300. The court below awarded judgment for the defendant, holding that the fact that "some part oí the land conveyed encroached on the adjoining property did not constitute a breach of the covenant against incumbrances contained in the deed. In support of this ruling, the learned court below cited Stearn v. Hesdorfer, 9 Misc. Rep. 134. That case does not support the ruling made. In that case it was held that, an encroachment on adjoining land of a building erected upon the land conveyed, ‘ ‘ together with the buildings and improvements erected thereon,” does not create a breach of the covenant of seizin, and this we understand to be the established rule. That case, however, is not authority for the proposition that an action will not lie in such a case for the breach of the covenant against incumbrances. In reference to the; action for breach of the covenant against incumbrances, that casé merely held that, in the absence of proof of damage, only nominal damages may be recovered. "This ruling is in accord with that made in McGuckin v. Milbank, 152 N. Y. 297. The encroachment of the building'upon the adjacent land created, a right in the owner of the *151adjacent land, which, while it did not interfere with the passage of the fee, did impair the value of the property conveyed by the defendant to the plaintiff. Under the circumstances disclosed by the record, the encroachment was material and substantial. It was, therefore, an incumbrance, and as such within the terms of the covenant. The existence of the incumbrance caused damage to the plaintiff, and the expense which was incurred in its removal may properly he recovered as damages, provided that the damages recoverable shall not exceed the purchase price with interest. 2 Reeves Real Prop. 1529. Under this rule,. the plaintiff could not have recovered more than $250, which was the amount of the purchase price of the one-half interest which he acquired in the property from the defendant.

It follows that the judgment should he reversed, with costs to the appellant, and judgment should be awarded to the plaintiff for .$250, together with costs taxable in the Municipal Court.

Gerard and Bijur, JJ., concur.

Judgment reversed.