Opinion
Argued March 10, 1898
Decided April 19, 1898
John Frankenheimer for appellant. Edward W. Sheldon for respondent.
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 of Cole v. Hughes ( 54 N.Y. 444); Scott v. McMillan ( 76 N.Y. 141, 144) and Hart v. Lyon ( 90 N.Y. 663) establish a principle adverse to her claim which, if followed, must result in the defeat of this appeal.
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.
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 ( 135 N.Y. 312) to sustain her claim. An examination of the record in that case discloses that two persons each owned two lots on Fifty-ninth street, in the city of New York. The lots were numbered 1, 3, 5 and 7. One of the parties owned lots numbered 1 and 7, and the other owned lots 3 and 5. While these lots were unoccupied and wholly unimproved, an agreement was entered into between the parties, which recited that they were desirous of entering into an agreement authorizing either of them, and his respective heirs and assigns, to erect a party wall upon the lines of one or both of the lots adjoining the lots of the other. It then provided that either of the parties might, at any time thereafter, erect upon his lot or lots and the adjoining lot or lots of the other party, party walls, the center line to coincide with the dividing line of the lots upon which they might be erected, and the other party, his heirs and assigns, should have the right to use them by paying to the party who might have erected the walls, his heirs or assigns, one-half their value, when they were used. It also provided that when built they should forever remain party walls, and that the agreement and the covenants therein should apply to and bind the legal representatives of the several parties and should be construed as covenants running with the land. In that case there was no agreement that one should build a party wall, and the other pay when it should be used by him. But the agreement was a general one by which the parties conferred, each upon the other, the authority to erect such wall, and dedicated to that use a portion of each of their lots, with an agreement that if either should build the other might have the right to use it by paying his share of the expense. Thus, it is clear that in that agreement there was no personal covenant by one to pay the other. It was not and could not then be known who would build, or who was to pay when the wall was used. The agreement was wholly prospective, and its purpose was to impose upon the land of each, and not upon either personally, the burden of a future party wall, and to secure to the land and, thus, to its subsequent owners, a corresponding right to the use of the wall by paying one-half of its value. The land and the manner of its prospective use were the primary and only subject and purpose of the agreement. The plain intent of the parties was to bind the land by covenants that should run with it, and that no personal liability should arise. The evident intention of the parties was to charge upon the land the burden and expense of party walls, and at the same time to confer upon the owner of each of the lots the right to construct them, on condition that any present or future owner of the adjoining lands using them should pay the value of the portion so used. The provisions of the agreement in that case related to the future use of the property, and there was no intention to provide for any present or existing situation. Obviously, the agreement was made with the view that such a contract would be beneficial to the land of both parties and would bind it when the conditions contemplated should subsequently arise. In that case the character of the agreement, its obvious purpose, its prospective provisions, and the situation of the lands when the agreement was made, all concurred in showing an intent that its covenants should run with the land, and clearly justified the court in so holding. But in the other cases to which we have adverted, as well as in the case at bar, the agreement was in effect a personal covenant between the parties. By the contracts in those cases a designated party was authorized to build a party wall, the other agreeing to pay a portion of its value when it should be used by him. There the agreement was a present one, the party who was to build and the one who was to pay were expressly designated, and the covenant to pay was clearly a personal one. Hence, it is plain that the Mott case is distinguishable from the cases of Cole v. Hughes, Scott v. McMillan and Hart v. Lyon, and is not in conflict with the doctrine which has long been established in this state.
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 ( 54 N.Y. 444) and Scott v. McMillan (76 id. 144), I think we should have to agree with the appellants' argument. * * * We do not interfere, in the least degree, with the well-settled doctrine of these cases, if we give to the present contract a construction which imposed the burden of its covenants upon the land it concerned." He also distinguished that case from the case of Hart v. Lyon. So that from a mere reading of that opinion it becomes plain that the court did not intend to "interfere, in the least degree," with the principle established by the Cole and Scott cases, nor with the doctrine of the case of Hart v. Lyon.
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.
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.