195 N.Y. 185 | NY | 1909
The Appellate Division, in affirming the judgment for the defendant, based its determination upon the ground that the covenant in the party-wall agreement did not run with the land, within the authority of certain decisions of this court; inasmuch as it did not create any privity of estate. This distinction was pointed out that "where the agreement does not contemplate the present construction of a party wall, but authorizes its construction by either party in the future, the rule is different and the covenant is said to create a privity of estate and to run with the land." We think that this distinction *188
is one, which has been established by our decisions, and that a rule of property has thereby been created, which should not be departed from. (See Mott v. Oppenheimer,
Prior to the decision in Mott v. Oppenheimer, the rule had become firmly settled that, where an owner of land builds a party wall, under an agreement with his adjoining landowner that, when he or his assigns shall use it, he or they should pay the value of the party wall, the covenant of payment was not one which ran with the land. (See Cole v. Hughes,
The judgment appealed from should be affirmed.
CULLEN, Ch. J., EDWARD T. BARTLETT, VANN, WILLARD BARTLETT and CHASE, JJ., concur; HAIGHT, J., not voting.
Judgment affirmed, with costs.