Opinion
March 5, 1957.
Schwager, Landau Krantz, New York City, for plaintiff.
O'Malley Boyle, New York City, for Sheldon Pollack, defendant and third-party plaintiff.
Peter Campbell Brown, Corp. Counsel, New York City, for third-party defendant City of New York.
This is a motion by the City of New York to dismiss the third party complaint on the ground of legal insufficiency. The main complaint alleges in substance that the plaintiff leased from the City certain vacant land; it built upon the premises two brick buildings with the consent of the City, pursuant to an agreement that said buildings, appurtenances and improvements should belong exclusively to the plaintiff and would not become part of the freehold; that more than twenty years later the City advertised and offered for sale at public auction the property in question; that the defendant purchased the property and received from the city a bargain and sale deed therefor without covenants and subject to the rights of tenants and persons in possession thereof; that plaintiff is the owner and in possession of the aforesaid buildings, appurtenances and improvements erected by it; that defendant disavows plaintiff's ownership and claims title to and ownership of the said buildings, etc. in himself, without "color in law or in fact."
Plaintiff further alleges non-waiver of the provisions of the aforesaid agreements with the City and non-surrender of the said property; and because of defendant's adverse claim irreparable harm and damage will result, requiring an adjudication that defendant has no claim, right, title or interest in the existing buildings, etc., and a decree restraining the defendant from interfering with or preventing plaintiff from removing the existing buildings, etc., erected by it.
The third party complaint alleges, in substance, that the City and third party defendant, was the owner in fee simple of the premises, including the buildings, appurtenances and improvements; that through the auction sale referred to, the city conveyed the aforesaid property to him by deed duly recorded, by reason of which he became the owner of the premises described; that the plaintiff instituted the main action against him (third party defendant), wherein plaintiff claims title to and ownership of the buildings, appurtenances and improvements erected on the premises by it; and that by reason of such claim, if the plaintiff is adjudged the owner thereof, the City of New York, the third party defendant, is or may be liable to the third party plaintiff wholly or in part for their value.
Under Civil Practice Act, § 193-a, a defendant may implead a third party if the latter is obligated to indemnify the former for all or part of the plaintiff's recovery. But the impleader is limited to the prosecution of a "claim over", Cloud v. Martin, 273 App.Div. 769, 75 N.Y.S.2d 1; Wolf v. V. La Rosa Sons, Inc., 272 App.Div. 932, 71 N.Y.S.2d 320, affirmed 298 N.Y. 597, 81 N.E.2d 329, and where the third party complaint shows upon its face that there is no basis for a claim of indemnity against the impleaded defendant, the third party complaint must be dismissed. Miele v. City of New York, 270 App.Div. 122, 58 N.Y.S.2d 407; Green v. Hudson Shoring Co., 191 Misc. 297, 77 N.Y.S. 2d 842. The language employed by the statute that third party defendants may be joined who "are or may be liable" to indemnify the primary defendant, connotes, in my view, a debatable issue of liability by the indemnitor on the facts as they exist, and not permissive of the joinder of third party defendants against whom the third party plaintiff alleges no cause whatever. Such is the situation presented by the pleadings under attack.
Accepting the allegations of the pleadings as true, as the court must on motions of this character, and since in determining the sufficiency of a third party complaint, consideration must be given not only to the pleading directly attacked, but also to the complaint-in-chief, Atlas Clothing Export Corp. v. Consolidated Edison Co., Sup., 136 N.Y.S.2d 822, 823, it cannot be disputed, nor does the answer thereto deny, that the City conveyed the premises to defendant-third party plaintiff, by bargain and sale deed, without covenants and subject to the rights of tenants and persons in possession.
It is well settled that where, as here, after a contract for the sale of realty is executed and the conveyance accepted, the grantee must rely solely on the covenants in the deed. If the deed contains no covenants, he is without remedy either for eviction or incumbrance and covenants will not be implied in any conveyance of real estate. Sandford v. Travers, 40 N.Y. 140, 143; Burwell v. Jackson, 9 N.Y. 535, 541; Wheeler v. State of New York, 190 N.Y. 406, 410, 83 N.E. 54, 55; Johnson v. State of New York, 188 App.Div. 33, 175 N.Y.S. 784; Baird Holding Corp. v. Burns Bros., 209 App.Div. 601, 204 N.Y.S. 820.
Moreover, the principle of caveat emptor applies because it is undisputed that the original plaintiff was, at the time of the conveyance to the third party plaintiff, and that it still is, the sole tenant in actual and exclusive possession of the subject premises. Such possession is notice to all the world of the existence of any right which the person in possession is able to establish. Phelan v. Brady, 119 N.Y. 587, 23 N.E. 1109, 8 L.R.A. 211; Ward v. Metropolitan Elevated Railway Co., 152 N.Y. 39, 43, 46 N.E. 319, 320; Gilbert v. Van Kleeck, 284 App. Div. 611, 615, 132 N.Y.S.2d 580, 583.
The third party complaint is legally insufficient for it does not set forth facts of possible liability for indemnification to the third party plaintiff.
Motion granted and complaint dismissed. Settle order on notice.