108 N.Y.S. 929 | N.Y. App. Div. | 1908
The complaint alleges that the plaintiffs and the defendants derived title to separate parcels of land through mesne conveyances from a common grantor; that said parcels, with others, formed a a single tract which was divided in 1888 by said grantor, who conveyed the subdivisions to separate purchasers at different times between 1888 and 1892 by conveyances, each of which contained the restrictive covenant the violation of which is sought to be restrained in this action ; that said covenant was intended for the benefit of all the several purchasers, and that the deeds to the defendants were expressly made subject to it. ( )
The learned court at Special Term .sustained the demurrer for the reason that the complaint did not show but what the plaintiffs’ lots were the first conveyed, and that the grantee of each lot got no reciprocal rights against the grantor or his subsequent grantees; that the covenant in each deed only inured to the benefit of the grantor and his grantees; and that the case was not aided by the allegation that the covenants were intended for the benefit of all purchasers, for the reason that the covenants made for the benefit of the plaintiffs could only be enforced by them in case the covenantee was already under obligation to them commensurate with the scope of the covenant. .
It is true that upon its face the covenant in each deed was personal to the grantor, aijd standing alone, is not sufficient to show an intention to create mutual negative easements. (Equitable Life Assurance Sac. v. Brennan, 148 N. Y. 661,) In that case the
The interlocutory judgment Should' be reversed and'.the demurrer overruled, with the usual leave to plead over.
Jenks, Hooker, G-aynor and Eich, JJ., concurred.
Interlocutory judgment reversed, with costs, and demurrer over ruled, with costs, with leave to plead over.