Registered Country Homebuilders, Inc. v. Stebbins
| Decision Date | 27 October 1958 |
| Parties | REGISTERED COUNTRY HOMEBUILDERS, INC., Plaintiff, v. Henry V. STEBBINS, Defendant. |
| Court | New York Supreme Court |
Donald H. McCann, Newburgh, for defendant, for the motion.
Anthony F. Avallone, Blauvelt, for plaintiff, opposed to the motion.
This motion by defendant to dismiss the complaint herein is made pursuant to Rules of Civil Practice, rule 107, subd. 5, on the ground that the action was not commenced within the time limited by law for commencement of an action upon the particular cause of action pleaded. The action is brought against an attorney to recover damages allegedly sustained by a real property purchaser because of alleged errors and omissions of the attorney in searching, abstracting, and certifying the title to the property.
The defendant (the attorney) on this motion claims that the alleged cause of action is in the nature of one to recover for his negligence and is barred by application of the three-year statute of limitations. See, Civil Practice Act, § 49, subd. 6. The plaintiff, however, contends that the cause of action is founded upon a 'contract obligation or liability express or implied' and governed by the six-year statute. See Civil Practice Act, § 48, subd. 1. If this latter section applies, the action was timely commenced.
The three-year statute (Civil Practice Act, § 49, subd. 6) applies to 'an action to recover damages for an injury to property, or a personal injury, resulting from negligence.' The terms 'an injury to property' and 'a personal injury' are defined in the General Construction Law (see sections 25-b and 37-a). Now, bearing in mind the definition of a 'personal injury' as therein set out (see said section 37-a), it is clear that an action against an attorney or abstracter for errors, omissions, or defects in a title search or title certificate is not an action 'to recover damages for * * * a personal injury, resulting from negligence'. See, O'Neill v. Gray, 2 Cir., 30 F.2d 776.
An 'injury to property' is defined as 'an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract'. General Construction Law, § 25-b. Negligence of an attorney or abstracter in connection with a title search or certificate resulting in damage to his client or customer may, of course, result in an 'injury to property' within the meaning of the term as defined in said section 25-b, but is not deemed such an injury where the damage occurs because of 'the breach of a contract'.
Where an attorney or abstracter accepts employment to make a search of and to certify as to the title to real property, there is an implied undertaking on his part, in the absence of a contrary or limiting agreement or understanding, that his search and certificate will be accurate and complete. Thus, ordinarily, the attorney or abstracter, undertaking to make a title search and to deliver a title certificate, is liable on the theory of breach of contract where there are damaging errors or omissions in his search or certificate. It is, in fact, authoritatively said that the liability of an abstracter for damages for injuries resulting from wrongful or negligent errors, defects or omissions in abstracts prepared or furnished by him 'is not in tort, but is contractual, that is to say, it is founded upon a breach of his express or implied contract with his customer or client to furnish him with a true and correct abstract'. 1 C.J.S. Abstracts of Title § 11, page 389.
The amended complaint here before the court is rather inartistically drawn, but, giving to plaintiff the benefit of every fair inference and intendment arising therefrom, a cause of action for breach of contract may be spelled out. The amended complaint does allege in effect that there was an employment by the plaintiff of the...
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