
    Sebald v. Mulholland.
    (New York Superior Court—Equity Term,
    December, 1893.)
    Where a party-wall agreement was made by a remote grantor and the covenant of payment was to him, such covenant is a personal one, and cannot be enforced by a grantee, even though such agreement contains a provision that “ this agreement shall be perpetual and at all times construed as a covenant running with the land.”
    
      Mott v. Opperiheimer, 135 IT. T. 312, distinguished.
    
      Equity will not interfere in behalf of such grantee where the adjoining owner has extended his building toward the street upon his own land, « even though such extension be anchored to the party wall, where such grantee made no complaint until after the alleged wrong was completed.
    Bill to enforce payment of sum agreed to be paid for party wall, and to have same declared a lien upon the premises of the defendant, and to compel removal of projecting wall, etc.
    
      Kurzman & Frankenheimer, for plaintiff.
    
      E. W. Sheldon, for defendant.
   McAdam, J.

On November 17,1871, Robert Auld owned the unimproved lot known as No. 417 West Forty-sixth street, in this city, and Philip 0. Agnew owned the unimprovéd lot adjoining, known as No. 415. Auld contemplated building • on his lot, and following the plan of the' house No. 413, which ' had already been erected two feet back from the building or street line, and subsequently did so. Auld entered into a written agreement with Agnew, November 17, 1871, which was recorded December 8, 1871. The agreement, after reciting the ownership by Auld of No. 417, and by Agnew of No. 415, and that Auld was about to build, and that it had been agreed that the dividing line between the two properties ■ .should be made a party wall, one-half thereof on each lot, • declares that Auld and Agnew “ have agreed and do hereby mutually covenant and agree each with the other, and for their respective heirs, administrators and assigns, that the said wall so to be constructed shall be used and maintained as a party wall forever.” Then follow the specifications for the wall, which is to be sixteen inches thick, fifty-five feet long, and not to extend nearer the street than the front wall of No. 413. - The agreement then continues: “ And it is further' agreed between the said parties that whenever the said Agnew or his personal representatives may desire to use said wall, he or they shall pay for the portion used.” It concluded with this provision : And it is further mutually * * * agreed ■ * * * that this agreement shall be perpetual, a/nd at all times construed as a covencmt running with the la/nd.” Subsequently, by various mesne conveyances, Auld’s title to 417 became vested in the plaintiff, and Agnew’s title to 415 became vested in the defendant, subject to said agreement. In 1892 the defendant built on 415 and used a portion of the party wall, the agreed value of which is $567.50. In building, the defendant extended his house out to the street line (but on his own land), and in consequence the front projects two feet beyond the frontage of the neighboring houses, numbers 415 and 413. The suit is in equity (1) to charge upon the land of No. 415 a lien for the money due for the use of the party wall, as was done in Guentzer v. Juch, 51 Hun, 397; and (2) to compel the removal of the two feet of the front which projects to the street line, or that the plaintiff be awarded, in lieu of that relief, a moneyed compensation for the consequential injury agreeably to equitable principles. Amerman v. Deane, 132 N. Y. 355. The two counts will be separately considered. The defendant challenges the right of the plaintiff to maintain any action on the first count on the grounds: (1) That the party-wall agreement having been made by a remote grantor, and the covenant to pay being to him, it is a personal covenant, enforcible only by him or his personal representatives; (2) that the defendant is not liable, being a mere grantee and not the person who made the promise to pay, and cases are cited which sustain both objections. Cole v. Hughes, 54 N. Y. 444; 13 Am. Rep. 611; Scott v. McMillan, 76 N. Y. 141; 16 N. Y. St. Repr. 795; Kearr v. Sossan, 9 id. 25 ; Joy v. Bank, 115 Mass. 60; Hart v. Lyon, 90 N. Y. 663; Squier v. Townshend, 2 City Ct. Rep. 142. The plaintiff claims ■ that those cases are distinguishable from this, in that the agreement herein declares in express terms that it is to be perpetual, and at all times construed as a covenant running with the land.” But such agreements are generally so regarded, and the insertion of such a declaration would seem to add no'magical force to their meaning. In Hart v. Lyon, 90 N. Y. 663, the agreement contained a declaration in all respects similar to the one in question, hut the court held that it did not take the case out of the operation of the rule established in Cole v. Hughes and the other cases cited. ■ The court went further, and reaffirmed the principle of those cases, that the right to compensation is personal to the builder and does not pass by a grant of his land, nor does the agreement run with the land of the adjoining owner so as to bind his subsequent grantees, and this is so although the adjoining owner assumes to bind his grantees and although one purchase of him with notice of the agreement.” The jfiaintiif relies upon Mott v. Oppenheimer, 135 N. Y. 312, to sustain her right of action. That was where a bill had been filed to enjoin the grantee from using a party wall until it was paid for according to the stipulation of the parties, and the contract contained this significant provision, “ this agreement cmd the covenants therein contained shall apply to, and bind the legal represéntatives of the several parties hereto, and shall be construed as covenants running with the land.” The court, after reaffirming the doctrine of the previous cases, said, “ But this agreement is dissimilar, in the respect that it was expressly agreed that the covenants of the agreement should run with the land,” and the decision proceeds entirely upon this distinction. It may on first impression seem that if' an agreement runs with the land the covenants forming part of it must run likewise, but there is a dividing line which distinguishes between covenants real and personal, those that run with the land and those that do not; and this discriminating feature prominently appears in several of the cases before cited. It will be found that the courts have been careful to distinguish between a covenant personal and collateral in its character, and one attached to the land as such, and necessary to its enjoyment. The obligation to pay and the right to enforce payment have always been regarded as -covenants of a personal or collateral character, that do not pass by grant, for ■ they do not run with the land, nor are they necessary to its • enjoyment, while the other provisions of the party-wall agreement generally do and are.

Tlie covenant to pay ceases for all time after payment, while the other covenants run with the land and are perpetual.

The agreement in Mott v. Oppenheimer, 135 N. Y. 312, went further than the contract here, for it declared that these “ covenants ” as well as the agreement were to run with the land, and the court on that account gave effect to the intention of the parties as expressed, by holding that they did run with the land, passed by grant, and bound the grantees of the parties.

The distinction may seem refined, but it was necessary to effectuate the meaning and intention of the parties as they had evidenced the same by their writing. The court did nothing more. So understood, the case of Mott v. Oppenheimer, 135 N. Y. 312, does not assist the plaintiff, and under the rule declared in Gole v. Hughes and other cases before • cited, which is the principle that controls this case, she has no cause of action whatever under the first count of her bill. In Guentzer v. Juch, 51 Hun, 391, also relied upon by the plaintiff, the bill was filed by the party who erected the party wall, whose right to compensation was undisputed. The right of a. grantee to recovery did not arise, and was not, therefore, decided, a feature which distinguishes that case from this. If the plaintiff is not entitled to recover the compensation claimed (and such is the conclusion reached), it would be a work of supererogation to examine the question whether the grantee of the adjoining lot by assuming the party-wall agreement charged the land so as to make it the primary fund for’ its payment. The first count must, therefore, be dismissed.

The second cause of action is. one not addressed to the favor of a court of equity. The party wall was not extended beyond its original dimensions. When within two feet of the street line the defendant built an independent wall, entirely upon his own land, extending out to the building line.. The plans were approved by the building department, so that,, presumably, the erection made complies with all legal requirements, and is an unobjectionable structure.

Agnew had by the party-wall agreement an election to allow the wall to stand on his land and pay nothing, or to use it and pay half its value. It was not an incumbrance on the land, but a benefit to it (Hendricks v. Stark, 37 N. Y. 106, and see 4 Trans. App. 146), and when he sold the land the benefit went with it (Scott v. McMillan, 16 N. Y. St. Repr. 798), his obligation to pay remained and ripened into a present obligation to pay as soon as the person to whom he ■conveyed made the use of the wall contemplated by the agreement, and authorized by the very nature of the grant. If the defendant had chosen, therefore, to disregard the party-wall agreement, and had, in conformity with that intent, built an independent wall entirely upon his own land, extending out to the street or building line, lie would have offended no ■covenant and given rise to no cause of complaint. Kingsland v. Tucker, 115 N. Y. 574. There is no substantial difference between the case put and the one at bar, for the practical result would in either case be precisely the same.. The plaintiff lays stress, on the fact that the front extension must have been anchored to the party wall or it could not stand, and her .'ground of action seemingly is that the defendant in that manner made an additional use of the wall not warranted by the agreement. The additional burden is not of that substantial character which calls at this late day for the action of a court of equity to remove the additional burden or award the plaintiff compensation for it. If she had asserted .her rights soon after the erection was commenced, as in Baron v. Korn, 127 N. Y. 224, the court might have been disposed to consider more favorably the claim made now. It might perhaps have enjoined the prosecution of the work or made some such equitable order as the rights and duties of the parties required, but the plaintiff remained silent until the alleged wrong was completed, and then brought suit. While there may be nothing in the conduct of the plaintiff 'arising to the dignity of an estoppel (Galway v. Elevated R. R. Co., 128 N. Y. 132; Welsh v. Taylor, 134 id. 450, 457), her acquiescence is sufficient to- justify noninterference by equitable relief where the remedy at law is adequate and more appropriate by reason of laches. Story’s Eq. Juris. § 1535; McSorley v. Gomprecht, N. Y. L. J., July 14, 1892; Andrews v. Monilaws, 8 Hun, 65. For these reasons, the complaint as to the second count must be dismissed, but without prejudice to any action at law the plaintiff may elect to bring respecting the same wherein her rights from a legal standpoint may be determined, a duty not now incumbent on the court.

The counterclaim interposed by the defendant, charging that the newel post of the plaintiff’s stoop interferes with his premises, is more imaginary than real. Adler v. Elevated Ed. E. Go., 138 N. Y. 173. It is destitute of merit and must be dismissed. No costs to either party^s against the other.

Complaint dismissed.  