Martin v. O'Conner

43 Barb. 514 | N.Y. Sup. Ct. | 1865

By the Court,

Sutherland, J.

There is no doubt that the covenant on the part of the lessees in Y arian’s lease, to pay the taxes and assessments, is a covenant real running with the land, and that an action could have been maintained on it by the lessor against an assignee of the lessees ; but it is equally clear that no action can be maintained on it against an under-tenant of the lessees, or against an assignee of such under-tenant.

Though the lease of the original lessees (the trustees, &c.) to Hagadorn, was a lease of the whole unexpired term, yet, as it contained a covenant on the part of Hagadorn to surrender up the possession of the premises to his lessors at the expiration of the term, and also a covenant on his part to pay the rent to his lessors, and as it contained a provision giving his lessors a right of re-entry in case of non-payment of the rent, or of a breach of any of the covenants on his part, I can not see why the case of Post v. Kearney, (2 Comst. 394.) is not in point to show, conclusively, that Hagadorn was the under-tenant, and not the assignee of the original lessees ; and that therefore no action could be maintained either against him or his assignee on the covenant by the original lessees to pay the taxes and assessments.

All this I understand to be virtually conceded by the counsel for the appellants; but he makes an ingenious attempt, in his points, to bring another principle to the support of the action, that is, that an action at law will lie on a promise made by a defendant upon a valid consideration, to a third party for the benefit of the plaintiffs,- though the plaintiffs were not privy to the consideration ; citing Lawrence v. Fox, (20 N. Y. Rep. 268,) and Burr v. Beers, (24 id. 178,) to illustrate the principle. But in view of the express covenant on the part of Hagadorn with his lessors (the original lessees) to pay the taxes and assessments, certainly no covenant on the part of Hagadorn with the original lessor can be implied ; and if Hagadorn made the express covenant as the under-tenant and lessee of the original lessees, and not as their assignee, the covenant must be presumed to have been for the benefit of his immediate lessors, and not for the benefit of the original lessor. To hold otherwise would be inconsistent with the decision in Post v. Kearney, (supra,) making Hagadorn an under-tenant and not an assignee. A covenant by Hagadorn as assignee to pay taxes, &c. might probably have been said to have been for the benefit of the original lessor, but the covenant by him as under-tenant to pay taxes, &c. must be deemed to have been made for the benefit of his lessors. The same circumstances, covenants and provisions in the lease to Hagadorn, which, according to the decision of the court of appeals before referred to, made him an under-tenant, and not an assignee, must be deemed to show that his covenant to pay the taxes, &c. was for the benefit of the party with whom it was made.

[New York General Term, February 6, 1865.

I think it follows from the decision of the court of appeals in Post v. Kearney, (supra,) that the judgment dismissing the complaint was right, and should be affirmed with costs. '

Ingraham, Clerke and Sutherland, Justices.]