Feldman v. Six Eleven Realty Co.

Judgment unanimously reversed on the law, with thirty dollars costs to the appellants, and judgment directed for the plaintiffs for the amount demanded in the complaint, with interest, and with appropriate costs in the court below.

Upon the pleadings and proof in the case it does not appear whether plaintiffs paid the tax lien before or after the conveyance by *822them to third parties. If before, there can be no doubt of their right to recover. (Geiszler v. De Graaf, 166 N. Y. 339.) We also hold that if the lien was paid after that conveyance, a recovery may be had.

While it may be that after a conveyance by the covenantee of a covenant against incumbrances, his cause of action for a breach of the covenant is lost to him and resides in his grantee, yet where he pays the incumbrance after a conveyance, in which he has covenanted against incumbrances, he is subrogated to the rights of his grantee and becomes the equitable assignee of the cause of action of his grantee, as if his grantee had paid the incumbrance. (Dunlop v. James, 174 N. Y. 411; Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 id. 137.)

Present: Cropsey, Lazansky and MacCrate, JJ.