
    Dierck Schomacker, Respondent, v. Sophia Michaels, Appellant.
    First Department,
    January 25, 1907.
    Real property — lis pendens — action for specific performance of personal covenant of grantee.
    When a grantee covenants to pay to the grantor any amount recovered in consequence of the destruction of easements by a railroad cprfS&E^fcis a personal covenant, does not run with the -land, and does not appurtenant thereto.. Hence, the grantor in an action forj ormance of such covenant is not entitled to file a lis pendens.
    
    Appeal by the defendant, Sophia Michaels, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of December, 1906, denying the defendant’s motion to cancel and discharge of record a Us pendens theretofore filed in said clerk’s office.
    
      Abraham, A. Silberberg, for the appellant.
    
      L. II. Berkeley, for the respondent.
   Ingraham, J.:

The action was brought for the specific performance of an agreement contained in a conveyance by the plaintiff to one Quay for the release of certain easements in the premises conveyed by the plaintiff to Quay; and a notice of the pendency of this action was filed when the action was brought. The defendant interposed an answer, and moved to cancel the notice of pendency of action upon the ground that this action was not one in which the plaintiff could' file such a notice. This motion was denied and the defendant, appeals.

It would seem by the decision of the Court of Appeals in McKenna v. Brooklyn Union Elevated R. R. Co. (184 N. Y. 391) that, this reservation in the deed1 was a personal covenant and did'' not affect the easement appurtenant to the property. 'Quay' beeatne the absolute owner of the easement, but undoubtedly any sum of money that she received from the railroad company for a destruction or appropriation thereof she would hold for the plaintiff’s benefithut I do not see how this, affected in any way the real property, or authorized the defendant to file a notice of the pendency of action. The Court of Appeals in the McKenna case expressly held that there was- no equitable lien upon the easement which was binding upon a grantee of,the plaintiff’s grantee,, that such easements are inseparable fro.m the estate to- which they are appurtenant and the covenants in the deed in relation thereto- were personal covenants of the, grantee.. 'They did not run- with the land and could not affect either the property or. the- easement which was appurtenant, to. it. Section 1.670 of the Code of Civil Procedure provides that, “in an action brought to recover a judgment affecting the title to, or1 the possession, use, ■ or enjoyment of real property,’’ if the complaint is verified, the- plaintiff may file a notice of the pendency of the action, but as this action could not affect either the title to or the possession, Use or enjoyment of real property, the notice of the pendency of the: action was improper. If the defendant is hound to execute any release releasing this easement to the railroad company it is because she has assumed a personal covenant of the original- grantee by the conveyance of the'property to her. The plaintiff claims that this covenant gives her a vendor’s lien for the value of these easements,- but I do not see how -that can - follow. The consideration for the conveyance was the amount paid,, and the agreement of the: .'grantee- in. substance' was. to pay to the plaintiff any amount that should be recovered in consequence of the destruction of these easements by the railroad company. It is true, in. an action of this character, the: court will not determine whether or not the cause of action- can be sustained,, hut where there is mq all'ega- ' tion 'in the complaint upon which a' judgment could be recovered affecting the title to or the possession, use or enjoyment of real property the notice of pendency of the action was improperly filed, and it should be canceled.

. The order should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.  