197 N.Y. 365 | NY | 1910
In 1897 Julia Hurd died seized of two lots of land in the city of Rochester, and by her will she authorized her executor to sell and convey her real estate. Her executor sold and conveyed one of these lots to the plaintiff by a deed which contained a covenant on the part of the grantee, his heirs and assigns, that the front wall of any building erected on the premises conveyed should stand back at least twenty feet from the line of the street on which the lot fronted, and also a similar covenant on the part of the grantor that the front wall of any building erected on the adjoining lot should also stand back that distance from the street. Subsequently the executor sold to the defendant the adjoining lot by a deed which contained no covenants. Thereafter the defendant sought to erect a building on the line of the street, and this action was brought to restrain such erection.
The question in the case is the validity of the covenant on the part of the executor restricting the use of the lot last sold. The executor had merely a naked power of sale, and it is contended by the appellant that he had no power to create any obligation binding upon the estate which he represented. It is undoubtedly true that an executor or administrator cannot, by executory contract, impose a new liability on the estate which he represents. (Ferrin v. Myrick,
The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative.
EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.
Order affirmed.