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
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, 135 N.Y. 312, andSebald v. Mulholland, 155 ib. 455.)
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, 54 N.Y. 444; Scott v.McMillan, 76 ib. 141; Hart v. Lyon, 90 ib. 663.) In the case of Cole v. Hughes, upon which were rested the decisions in Scott v. McMillan and in Hart v. Lyon, it was held, in substance, that the party-wall agreement, which was entered into for the purpose of permitting one of the parties to erect the wall, created no privity of estate between the contracting parties, but, merely, a privity of contract; leaving the burden, or liability, of payment with the original covenantor. Those cases were actions at law to recover one-half of the value of the party wall against subsequent adjoining owners, upon their using the wall, in which the plaintiffs failed to recover. In the last one, of Hart v. Lyon, the covenant for payment was accompanied, in the agreement, by a further covenant that the expense of repairing, or of rebuilding, the party wall should be borne equally by the parties, their heirs and assigns. This gave occasion to the court to hold that the latter covenant "should be construed as perpetual and as a covenant running with the land, while the other, being personal, could not be so regarded;" thus, plainly intimating that there was a distinction to be observed, where the covenant was prospective in imposing a burden upon the land in the hands of its future owner. When the case of Mott v.Oppenheimer was decided, the rule of the cases referred to was not sought to be disturbed and the decision proceeded upon the difference in the situation and in the agreement of the parties. There, neither of the parties to the agreement, apparently, was about to build and they made
it with reference to the future. They were adjoining owners of unimproved lots and through the agreement obtained the necessary authority for the construction of a party wall thereafter, by either, or by the successors in interest of either, and for the use of the same by the then adjoining owner upon his paying one-half of the then value of the portion used. Subsequently, and when the lands had come into other ownerships, such a party wall was built and the plaintiff, who had acquired the premises so improved, brought the action against the adjoining landowner and was given a lien upon the defendant's premises for the value of one-half of the wall. It was held that the covenant of the parties to the agreement was not personal, and that it concerned the land and became annexed to the estate. "The effect of the contract," it was said, "clearly was to grant, or to create, an interest in the premises described." Later, in the case ofSebald v. Mulholland, (155 N.Y. 455, 464), the case of Mott
v. Oppenheimer was considered and, adverting to the fact that it was not proposed, in its decision, to change the rule of the earlier cases, it was held that it was distinguishable in its facts. That distinction was pointed out as being in this; that "the provisions of the agreement in that case related to the future use of the property, and there was no intention to provide for any present or existing situation;" that it was "made with the view that such a contract would be beneficial to the land of both parties and would bind it when the conditions contemplated should subsequently arise. * * * But in the other cases, * * * as well as in the case at bar, the agreement was in effect a personal covenant between the parties." The agreement in Sebald
v. Mulholland was made between one, who was "about to erect a building upon his lot" and another, owning the adjoining land, who agreed for himself and "his personal representatives," whenever he, or they, might desire to use the wall, to pay the due proportionate expense of its construction. The agreement differed from that in Mott v. Oppenheimer, not only in the respect dwelt upon in the opinion, but, also, in the fact that the covenant of payment was made by the adjoining lot owner for himself and "his personal representatives." Though I had written the opinion for the court in Mott v. Oppenheimer, I expressed myself as concurring with Judge MARTIN, who wrote in Sebald v.Mulholland, upon the ground that the contract then in question required a different construction from that in Mott v.Oppenheimer. It was different in the respects noted. The result of this last decision was to establish a test, by which it should be ascertained when the covenant in a party-wall agreement ran with the land. The Appellate Division justices have correctly pronounced upon the rule, as it was left by the decisions mentioned, and, as I have said, it being a rule of property, it should stand.
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.