155 N.Y. 455 | NY | 1898
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *458
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *459 So far as the appeal in this case involves the dismissal of the plaintiff's second cause of action, it is obvious that the decision of the Special Term was correct and the General Term properly affirmed it. Indeed, the propriety of the decision, so far as it relates to that question, is so manifest that we deem any discussion of it wholly unnecessary.
The only remaining question arises under the contention of the appellant that the agreement by Agnew to pay a portion of the value of the party wall whenever it should be used by him or his personal representatives, was a covenant running with the land. The effect of such an agreement has several times been passed upon by this court, and unless the rule which formerly existed in this state has been changed, the appellant's contention cannot be sustained. Indeed, her counsel frankly admits that the cases ofCole v. Hughes (
In the Cole case it was held that where an owner of land builds a party wall under an agreement with an adjoining owner that, when the latter shall use it, he will pay the expense of his portion of the wall, the right to compensation is personal to the builder, and does not pass by a grant of his land. It was also held that the agreement did not run with the land of the adjoining owner so as to bind his subsequent grantees, although the adjoining owner, by the terms of his agreement, assumed to bind them, and although they purchased with notice of the agreement. *462
In Scott v. McMillan this court decided that a covenant to contribute to the construction of a party wall, when he should use it, entered into by an owner of land, for himself, his heirs and assigns, did not run with the land, and was not enforceable against a subsequent grantee, although his deed was by its terms subject to the covenant.
In Hart v. Lyon the agreement, in all essential particulars, was identical with the agreement in the case at bar. There, as here, it was provided that it should be perpetual, and should at all times be construed as a covenant running with the land. That case cannot be fairly distinguished from this. There, an owner of land built a party wall under an agreement between himself and an adjoining owner, that when the latter should use it he would pay one-half of the value of the wall, and it was held that the right to compensation was personal to the former, and did not pass by a conveyance of his land, although the agreement contained a provision that it should be construed as a covenant running with it. That provision was held to apply only to the covenants to repair and rebuild, and not to the agreement to pay when the wall was used. It was said that the payment of one-half of the value of the wall, when the lot was built upon, would become inoperative when the payment was made, and it could not be perpetual because it spent its force by being fully executed, and that it could not run with the land after being fully performed. No reason is apparent why the same construction should not be given to a like provision in the agreement under consideration.
The principle of those cases is decisive of this question, and leads irresistibly to the conclusion that the judgment must be affirmed, unless the doctrine established by them has been subsequently overruled. The contention of the appellant is that those cases have been overruled by this court. Upon the validity of that contention this appeal must stand or fall.
The appellant relies upon the case of Mott v. Oppenheimer
(
Moreover, it is obvious that, when it decided the Mott case, this court did not intend to overrule or in any way interfere with the doctrine of the previous cases, as the learned judge who delivered the opinion of the court in that case expressly stated: "If this agreement was the ordinary one between adjoining owners for the erection and use of a party wall on their lands, such as it was in the cases of Cole v. Hughes (
Thus, it is obvious that the appellant's contention that the agreement between the parties in the case at bar constituted a covenant running with the land cannot be sustained; that the judgments of the courts below were right, and that they should be affirmed.
All concur (GRAY, J., upon ground stated in memorandum following), except O'BRIEN and BARTLETT, JJ., not voting.
Judgments affirmed.
Concurrence Opinion
I concur with my brother MARTIN in his opinion, because the contract in this case requires a different construction from that placed upon the contract in the case of Mott v. Oppenheimer. In that case the question was, upon the contract, whether any interest in the land was raised by force of its covenants and we thought that that was the effect of the instrument.
It is quite possible for parties so to contract with reference to a party wall upon their premises as thereby to dedicate the land to such a purpose. Whether they have done so is a question to be determined upon a construction of their expressed intentions, in connection with the covenants of the instrument. *466