Opinion
July 13, 1950.
Present — Taylor, P.J., McCurn, Vaughan, Kimball and Piper, JJ.
Judgment and order affirmed, with costs. Memorandum: We think that there was ample evidence to sustain the finding of the trial court that the plaintiffs did not rely upon the tax search and suffered no loss, the risk of which they did not assume. We deem it proper to point out that a tax search whether labelled "guaranteed" or not is not an instrument similar in nature to a policy of title insurance and that the obligations of one differ from the obligations of the other. In the case of a search, the maker is under a duty of care such as an attorney would be in making a search or abstract and in such case, in the event of error, is under no liability unless the failure in performing the duty resulted in damage. In other words, if the plaintiff may recover damages, he must show that he relied upon the search. Knowledge of the facts precludes recovery for the reason that there was no reliance upon the search and the damage was not thereby occasioned. In the case of a title insurance policy, the insurer undertakes to indemnify the insured if the title turns out to be defective. That is the purpose of procuring the insurance and knowledge of defects in the title by the insured in no way lessens the liability of the insurer. The doctrine of skill or negligence has no application to a contract of title insurance. (See Ehmer v. Title Guar. Trust Co., 156 N.Y. 10, 12; Trenton Co. v. Title Guar. Co., 50 App. Div. 490, 492; Glyn v. Title Guar. Trust Co., 132 App. Div. 859; Sperling v. Title Guar. Trust Co., 227 App. Div. 5, affd. 252 N.Y. 613; Dokel v. Title Guar. Trust Co., 147 Misc. 72, and Empire Development Co. v. Title Guar. Trust Co., 225 N.Y. 53.) The trial court applied the proper rule of law and the order affirming the judgment dismissing the complaint should be affirmed. All concur. (The judgment of Monroe County Court appealed from affirms a judgment of the Rochester City Court, dismissing plaintiff's complaint in an action under a guaranteed tax search. The order is the order of affirmance.)