Durnherr v. Rau

Decision Date04 October 1892
Citation32 N.E. 49,135 N.Y. 219
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, fifth department.

Action by Benedicta Durnherr against Joseph Rau to recover damages for breach of a covenant made by defendant with plaintiff's husband. From an order of the general term (15 N. Y. Supp. 344) affirming an order of the circuit court setting aside a verdict for plaintiff, and granting a new trial, plaintiff appeals. Affirmed.

Bacon, Briggs, Beckley & Bissell, (Theodore Bacon, of counsel,) for appellant.

Wm. E. Edmonds, for respondent.


The deed from Emanuel Durnherr to the defendant recited that it was given in payment of a debt owing by the grantor to the grantee of $660, ‘and the further considerations expressed herein.’ The grantee covenanted in the deed to pay all incumbrances on the premises ‘by mortgage or otherwise.’ This constitutes the only ‘further consideration’ on his part expressed therein. The deed also declared that the wife of the grantor (the plaintiff) reserved her right of dower in the premises. The conveyance contained a covenant of general warranty by the grantor, and the only legal operation of the clause respecting the dower of the wife was to limit the scope of the warranty by excluding therefrom her dower right. By the foreclosure of the mortgages on the premises existing at the time of the conveyance, in which (as is assumed) the wife joined, the title has passed to purchasers on the foreclosure, and the inchoate right of dower in the wife has been extinguished. This action is brought by the wife on the defendant's covenant in the deed, and she seeks to recover as damages the value of her inchoate right of dower, which was cut off by the foreclosure. The courts below denied relief, and we concur in their conclusion. The covenant was with the husband alone. He had an interest in obtaining indemnity against his personal liability for the mortgage debts, and this, presumably, was his primary purpose in exacting from the grantee a covenant to pay the mortgages. The cases also attribute to the parties to such a covenant the further purpose of benefiting the holder of the securities, and the natural scope of the covenant is extended so as to give them a right of action at law on the covenant, in case of breach, as though expressly named as covenantees. Burr v. Beers, 24 N. Y. 178. But the wife was not a party to the mortgages, and in no way bound to pay them. She had an interest that they should be paid without resort to the land, so that her inchoate right of dower might be freed therefrom. The husband, however, owed her no duty enforceable in law or equity to pay the mortgages to relieve her dower. The most that can be claimed is that the mortgages having (as is...

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49 cases
  • McDonald v. Finseth
    • United States
    • North Dakota Supreme Court
    • December 14, 1915
    ...192, 10 N.E. 263; Lorillard v. Clyde, 122 N.Y. 498, 10 L.R.A. 113, 25 N.E. 917; Wager v. Link, 134 N.Y. 122, 31 N.E. 213; Durnherr v. Rau, 135 N.Y. 219, 32 N.E. 49; King v. Sullivan, 31 A.D. 549, 52 N.Y.S. Trotter v. Hughes, 12 N.Y. 74, 62 Am. Dec. 137; Pardee v. Treat, 82 N.Y. 385; Wager v......
  • Benoist v. Rothschild
    • United States
    • Missouri Supreme Court
    • July 6, 1898
    ... ... promise to pay must be express. However provable, it must be ... express. Hall v. Morgan, 79 Mo. 47; Walker v ... Goodsill, 54 Mo.App. 631; Tanguay v ... Felthouser, 45 Wis. 30; 1 Jones on Mortg., sec. 761; ... Burr v. Beers, 24 N.Y. 178; Pardee v ... Treat, 82 N.Y. 385; Durnherr v. Rau, 135 N.Y ... 219; Hare v. Murphy, 45 Neb. 809. (d) A promise to ... assume the payment of existing liens can never be converted ... into a charge upon land (which can be established only by ... some memorandum in writing signed by the party to be ... charged), because such a promise, ... ...
  • Pennsylvania Steel Co. v. New York City Ry. Co.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 18, 1912
    ... ... The ... contract must be made for his benefit as its object, and he ... must be the party intended to be benefited." ... Other New York cases upon the subject in addition to ... Lawrence v. Fox, Steam Boiler Insurance Co., 158 N.Y. 431, 53 ... N.E. 212, 44 L.R.A. 512; Durnherr v. Rau, 135 N.Y. 222, 32 ... N.E. 49; Lorillard v. Clyde, 122 N.Y. 498, 25 N.E. 917, 10 ... L.R.A. 113; Beveridge v. New York El. R. Co., 112 N.Y. 1, 19 ... N.E. 489, 2 L.R.A. 648; Vrooman v. Turner, 69 N.Y. 280, 25 ... Am.Rep. 195 ... [ 17 ] The principle stated in the text is not ... ...
  • NY ST. ENERGY R. & D. AUTH. v. Nuclear Fuel Serv.
    • United States
    • U.S. District Court — Western District of New York
    • April 8, 1983
    ...to the parties in privity or only of the promisee. See, e.g., United States v. Jacobs, 304 F.Supp. 613 (S.D.N.Y.1969); Durnherr v. Rau, 135 N.Y. 219, 32 N.E. 49 (1892); 2 Williston, Law of Contracts 792-793 (3d ed. 1959). To the second objection the equally sensible reply is made that, to t......
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