Opinion
December 17, 1920.
Samuel L. Wallerstein, for the appellant.
Frank Comesky, for the respondent.
These forms authorized in the Real Property Law abridged covenants in deeds and mortgages. They read into such insurance covenant the terms "successors and assigns;" also "personal representatives," which are to be applied both to covenantor and covenantee. This legislation was not intended to work a change in the substantive law, but to reduce and simplify verbiage. The courts, therefore, may presume that the Legislature, in its re-enactment of the consolidated statutes, did not intend to change the substance of the law. (See Fifth Avenue Building Co. v. Kernochan, 221 N.Y. 370, 374.)
The original act for consolidation and revision of the general statutes (Laws of 1889, chap. 289, § 2) directed the commission to "suggest such omissions, contradictions and other imperfections as may appear in the existing statutes so proposed to be revised and consolidated, with recommendations for the amendment thereof, and they shall provide for the specific repeal of the statutes which would be superseded or covered by the general statutes so proposed by said commissioners."
The later creation of the Board of Statutory Consolidation (Laws of 1904, chap. 664) enacted (§ 2) that "The statutes shall not be changed in substance except that as to matters of procedure such board shall report for enactment such amendments as it may deem proper and necessary to condense and simplify the existing practice and as shall adapt the procedure to existing conditions." — [NOTE BY THE COURT.
The effect of these enactments regarding mortgages is to include as parties in these covenants not only the mortgagor but the representatives thereof, an implication which, besides the maker of the covenant, binds those who may thereafter assume its obligation. Here none of the grantees assumed the plaintiff's mortgages, but all took title subject thereto. Such grantees are not bound personally to insure. The clause, however, charges them with liability to have added to the mortgage debt an amount to reimburse the mortgagee for any insurance premium which she might properly incur for her security.
An examination of the original record in Dunlop v. Avery ( 89 N.Y. 593), tried by a referee, shows a finding by him (p. 23), "That the said defendant, Chapman W. Avery, in said mortgage covenanted on his own behalf and in behalf of his legal representatives, to keep the property described in said mortgage insured for $2,000 and that the losses if any by fire should be paid to the said Dunlop (plaintiff), or a sufficient amount thereof to satisfy any balance unpaid on the said mortgage." Yet that judgment held that such covenant was "entirely personal in its character, does not affect the land or run with it, and is collateral and incidental to the remaining covenants in the mortgage" (p. 599). Obviously the same effect must follow a rule of statutory construction which makes this short from equivalent to the longer form there considered.
That such affirmative covenants do not run with the land was mentioned in Miller v. Clary ( 210 N.Y. 127).
The large and increasing volume of mortgage insurance forbids the idea that in a statute to abridge common forms it was intended to overturn and unsettle a rule of covenants accepted in New York since 1882 and reaffirmed in Reid v. McCrum ( 91 N.Y. 412) and now widely recognized. (Joyce Ins. [2d ed.] § 23, n. 8; 27 Cyc. 1259; Columbia Ins. Co. of Alexandria v. Lawrence, 10 Pet. 507, 513; Farmers' Loan, etc., Co. v. Penn Plate Glass Co., 186 U.S. 434.)
I advise, therefore, to reverse the conclusions and judgment of the learned Special Term, and to dismiss the complaint, with costs in both courts.
JENKS, P.J., MILLS, RICH and KELLY, JJ., concur.
Judgment reversed and complaint dismissed, with costs in both courts.