
    Sarah Charlotte Clarke, App’lt, v. Moses Devoe, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1891.)
    
    Deed—Breach of covenant against erection of nuisance.
    . Defendant, owning Nos. 22 and 24 "West Tenth street, conveyed No. 24 to Robert Clarke by deed, stating that be, “for himself,his heirs, exec utors, administrators and assigns, does hereby cpvenant to and with the said party of the second part, his heirs, etc., that he will not erect or cause to be erected on said lot No. 22, any building which shall be regarded as a nuisance, or which may be occupied for any purpose which may render it a nuisance." -Subsequently, plaintiff, by mesne conveyance, acquired Clarke’s title to No. 24, and before this action was commenced acquired all her grantor’s claims for violation of such covenant. Defendant conveyed 22 to one Johnston without alluding to the covenant, who erected a livery stable thereon which was so used as to become a nuisance. 
      Held, that the covenant in question was personal to the defendant, and was solely against his own acts; that it did not make him liable for the acts of his grantees or of the subsequent owners, and that as he neither did the acts complained of nor caused them to he done, no cause of action was established against him.
    Appeal from an order of the general term of the supreme court in the first judicial department, reversing a judgment entered upon the verdict of a jury.
    Action to recover damages for the breach of a covenant contained in a deed from the defendant to a grantor of the plaintiff.
    In April, 1857, the defendant owned two adjoining parcels of land in the city of New York, with the buildings thereon, known as No. 22 and No. 24 West Tenth street, and on the 15th of that month he conveyed the premises known as No. 24 to one Robert Clarke, by a deed which contained the following covenant, viz.: “ And the said Moses Devoe, being also the owner of the adjoining lot, known and distinguished as No. 22 Tenth street, for himself, his heirs, executors, administrators and assigns, does hereby covenant to and with the said party of the second part, his heirs, executors, administrators and assigns, that he will not erect or cause to be erected on said lot, No. 22 Tenth street, any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance.” Subsequently, the plaintiff, by various mesne conveyances, acquired the title of ■said Robert Clarke to No. 24, and before the 8th of July, 1885, when this action was commenced, she also acquired by several assignments from her respective grantors, all claims or causes of action to them respectively belonging by reason of any violation of said covenant by the defendant. On the 24th of June, 1863, the defendant conveyed No. 22 to one Johnston, without alluding to said covenant, and without any restriction or limitation upon the uses to which the premises might be devoted. Prior to January 1, 1864, a building was erected by said Johnston on No. 22, which for several years was used as a private stable, but was afterward converted into a livery stable, and so used, according to the verdict of the jury, as to constitute a nuisance.
    This action was brought to recover damages from the defendant for violating the covenant aforesaid by permitting such nuisance to exist upon said premises. Upon the trial it appeared that the defendant neither caused nor permitted the nuisance, but that the same was created and maintained by his grantees and their lessees, without his consent.
    
      David Gerber, for app’lt; Freling H. Smith, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 264.
    
   Vann, J.

This is not an action in equity to restrain the continuance of a nuisance, nor in tort to recover the damages caused by a nuisance, but is simply for a breach of the covenant set forth in the foregoing statement. It is not brought against one who personally or through his agents or tenants created the nuisance, nor against one who owned the property at any time when the nuisance existed thereon, but against a former owner of two city lots, who, in selling one, many years ago, made said covenant with reference to the other, which he soon conveyed away and since then he has had no interest in either. The covenant, therefore, is not only the foundation of the plaintiff’s claim, but is the limit of the defendant’s liability. It is not denied that the plaintiff had a remedy for the nuisance against those who caused it, independent of any covenant, but this action depends strictly upon the covenant and can be maintained only by showing a breach thereof.

A covenant is simply a contract of a special nature, and the primary rule for the interpretation thereof is to gather the intention of the ¡Darties from their words, by reading not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met. Quackenboss v. Lansing, 6 Johns., 49; Duryea v. Mayor, 62 N. Y., 592, 597; Western New York Ins. Co. v. Clinton, 66 id., 326; Platt on Covenants, 136.

The deed under consideration is in the ordinary form, except that between the habendum clause and the usual covenants contained in modern conveyances the paragraph in question was inserted, consisting of a single sentence. This covenant is purely negative in character and has no relation to the land conveyed, but relates wholly to other premises owned by the covenantor and in which the covenantee had no interest There was no agreement that the premises should not be used for certain purposes, or that they should be free from nuisances forever. There was no corresponding covenant by the grantee restricting the use that he might make of the premises conveyed to him, so that the restrictions might be mutual and uniformity of use thus secured. No special object to be attained by the covenant is apparent, because both parcels of land were tenement house property, situated on a back street and surrounded by buildings of an inferior character.

In construing the covenant, it is to be observed that the grantor, although speaking for himself and his successors to the grantee and his successors, confined the restriction to himself alone by agreeing that he, the grantor, wbuld neither erect nor cause to be erected any building that should be regarded as a nuisance. According to the literal, and hence natural, interpretation of this language, the parties meant that the grantor should not personally do or cause to be done any of the inhibited acts. No doubt could arise as to the correctness of this construction, if the parties had not agreed in behalf of themselves and their assigns. The substance of the covenant, however, is limited to the covenantor and purports to restrict his action only. While the capacity in which he assumes to contract is in behalf of himself and others, the actual contract, or the thing agreed not to be done, is limited to bis own acts. Clearly the inconsistency cannot be dispelled by subordinating substance to form, or by holding that the actual agreement is of less importance than the capacity in which it was made.

The learned counsel for the plaintiff contends that the covenant should be read distributively, or as if the grantor had written: “ I covenant for myself that I will not build, etc. I covenant for myself, my executors and administrators that neither I nor they will so build, and I covenant for my assigns that they will not so build; ” but the objection to such a construction is that it requires something to be inserted that the grantor never assented to. He did not agree that his executors, or his administrators, or his assigns should not build, but only that he would not build.. He used no words that connected anyone except himself with the restriction against building, or that imposed an obligation in that regard upon any other person. It was not a general covenant “ not to erect,” as in Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y., 400, but a special covenant that the grantor would not erect, showing an intention to contract against the acts of one person only.

While effect should be given to every word of a written instrument, if possible, it is necessary sometimes to reject a part as sur.plusage and it is never allowable in order to prevent that, or to effect any other result, to insert that which the parties did not agree to. A personal covenant binds the heirs, executors and administrators in respect to assets, so that the word “ assigns ” only need be rejected as surplusage, in order ■ to relieve the case of all difficulty. A strained construction that has no foundation to rest upon except the single word “ assigns,” used in the descriptive and unsubstantial way already mentioned, should not be resorted to when it involves a serious result to the grantor with but slight benefit to the grantee, because it is improbable that under such circumstances such a result wás intended. Hence only by the use of plain and direct language,by the grantor should itbelield that he created a right in the nature of an easement and attached it to one parcel as the dominant estate and made the other servient thereto for all time to come. We think that the language used by the parties permits no such result . We agree with the learned general term that the construction contended for by the plaintiff “ would be giving a scope to the covenant far beyond what the language used requires and beyond what the grantees of lot Ro. 22 had a right to assume in accepting a conveyance of that lot. An incumbrance affecting lot number 22, for the sole benefit of lot number 24 and in a conveyance of lot Ho. 24, into which a purchaser would hardly look for incumbrances upon lo.t 22, will . not be inferred by a forced construction of the covenant or any amplification of its language beyond its natural meaning.”

In the London, Chatham & Dover Railway Company v. Bull, 47 Law Times, 413, upon which the plaintiff relies, the title of the grantee and his lessees was subject to' the covenant The entire language used by the contracting parties and the circumstances surrounding them when they contracted, showed an unmistakable intention that the restriction should be permanent and apply to any one who owned or occupied the land. The grantee was the covenantor and the court did not hold him liable on his covenant for the acts of his assigns, but awarded an injunction against the owners and occupants. While we are unable to concur in all that was said by the court in that case, we do not regard the result as opposed to the principle of our judgment upon thife appeal.

In Norman v. Wells, 17 Wend., 136, the defendant was held liable upon the ground that the act claimed to have been a violation of the covenant was his own act, “ of which he is annually-receiving the avails by way of rent.”

We think that the covenant in question was personal to the defendant and was solely against his own acts; that it did not make him liable for the acts of his grantees or of the subsequent owners, and that as he neither did the acts complained of nor caused them to be done, no cause of action was established against him.

The order should be affirmed and judgment absolute rendered against the plaintiff, with costs.

All concur.  