St. Paul's Church v. Ford
34 Barb. 16
N.Y. Sup. Ct.
1860
Check Treatment
By the Court, Allen, J.

The action is brought upon the instrument or agreement of November, 1856, and not upon the original lease and the covenant contained in it. No assessment or tax has been made upon the pew at the valuation in the lease, but all the proceedings for the assessment, as well as for its collection, have been under the supplemental agreement. A very serious question arises whether the de*18fendants are either severally or jointly liable personally for any assessment upon the reappraisal of the pew under the agreement of 1856. In the assessment provided for by the lease they were personally liable upon their express covenant to pay. But the agreement of 1856 contains no covenant or promise of any kind. It is a mutual consent to give up the old appraisal, and that a new appraisal may be made, and that the pews be subject to an annual tax or assessment upon the amount at which they should be appraised. The signers do not agree that they will be subject to such assessment in respect to the pews, or promise to pay any such assessment. Neither is it an alteration of the terms of the lease or an agreement to reform the lease or engraft the new appraisal upon it. It may well be that the pew holders may be willing to subject their pews to the enhanced lien when they would not be willing to bind themselves and their heirs perpetually to its payment. A pew owner is not liable in personam unless there be some special ground from which to infer a contract or promise to pay. (First Pres. Congregation in Hebron v. Quackenbush, 10 John. 217.) The express covenant in the lease, the absence of it in the substituted agreement, and the special provision for charging the pews is evidence entitled to some consideration that the defendants did not intend to undertake personally for the payment of the assessment. But the question made at the circuit and presented by the bill of exceptions is as to the joint liability of the defendants, if liable at all. The interest in a pew created by a lease in perpetuity, like that to the defendants, is an interest or estate in .realty, and the lessees or pew owners take title of their pews as real property, with all its incidents. (Baptist Church in Ithaca v. Bigelow, 16 Wend. 28. Shaw v. Beveridge, 3 Hill, 26. Vielie v. Osgood, 8 Barb. 130.) The defendants were tenants in common of the pew under their lease, and they had several and distinct freeholds. Bach was solely and severally seised of his share. (4 Kent's Com. 367, 8.) Neither could encumber the estate of the other, or-*19create any servitude or easement upon the common property without the consent of the other. (3 id. 436.) Neither could bind the other by an agreement in respect to the common property, hut either could charge his separate and several estate, or could convey it or mortgage it,- or become personally liable upon an undertaking respecting it. When the defendant Pomeroy signed the agreement of November, 1856, he charged his several estate or interest in the pew with the additional rate or assessment provided for, whether Ford became a party to it or not, and if any personal liability was created by signing the paper he hound himself only. Thecharge and liability was then several, and not joint. Pomeroy did not undertake to bind Ford, or charge his moiety of the pew. When Ford subsequently became a party to the agreement he undertook for himself and in respect to his moiety of the pew, but his liability and the charge upon his share of the common property, resulted from his individual and several undertaking. He did not become the surety of Pomeroy or charge his share of the pew for Pomeroy’s portion of the tax or assessment. In no pense did any one of the signers of the paper-become jointly bound with or, sureties for the others. A joint liability cannot result from' the ownership of a pew in common, any inore than a joint liability of all the pew owners results from a quasi tenancy in common of the whole church. The nonsuit was right and the motion for a new trial nmst be denied.

[Onondaga General Term, October 2, 1860.

Mullin, J. concurred.

Morgan, J. dissented, on the ground that the fair import of the transaction is, that the new assessment upon the increased valuation of the pew, should be a charge upon the defendants jointly, as before, Both could separately agree to this.

New trial denied.

Allen, Mullin and Morgan, Justices.]