
    GREITE v. HENDRICKS et al.
    (Supreme Court, General Term, Second Department.
    July 28, 1893.)
    Assignment—Covenant in Bill oe Sale.
    A covenant in a bill of sale of a saloon business, whereby the covenantor bound himself not to engage in the same business, within a half mile of the bargained premises, for a period of five years, is assignable, in connection with a sale of such business by the covenantee.
    Appeal from special term, Westchester county.
    Action by Charles Greite against Charles Hendricks and another to restrain defendant Hendricks from carrying on a saloon business. From a judgment for plaintiff, defendant Hendricks appeals.
    Affirmed.
    Argued before BARNARD, P. J., and PRATT, J.
    David Swits, for appellant.
    L. L. Van Allen, for respondent.
   BARNARD, P. J.

The defendant Kernick conveyed an hotel, saloon, boarding-house, and restaurant business to the plaintiff, in Mt. Vernon, N. Y. The consideration for the transfer was $5,-000, and by the terms of the bill of sale the covenants and conditions contained in a bill of sale from defendant Hendricks to defendant Kernick were made applicable to the sale to plaintiff. The bill of sale from Hendricks to Kernick contained this covenant:

“I, the said party of the first part, nor my wife, shall, in any manner, engage in any hotel, inn-lteeping, saloon, restaurant, or boarding-house business, within one half miles from said premises, at any time within five years from the date hereof.”

The date was 15th of January, 1891. The business was conducted upon premises known as “3 South Fifth Avenue,” and “18 and 20 West First Street,” Mt. Vernon. The Fifth avenue property was owned by Hendricks, and he was the lessee of the West First street property, when he sold to Kernick, under a lease which expired May 1, 1892. In 1891, Hendricks bought the First street property, and gave notice to plaintiff to vacate at the end of the lease. The plaintiff then bought the adjoining property, and continued his business therein. On the 2d of May, 1892, Hendricks opened the same business on the -old premises.

The covenant was valid. It was not in general restraint of trade. It was based upon a good consideration. It was beneficial to the purchaser, and its violation will be injurious to him. The rule governing such covenants is settled by the court of appeals in Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. Rep. 419. The covenant between the defendants was personal, when made, but when the sale was made to the plaintiff this covenant was legally incorporated in it. The case was then one where Hendricks had sold a business carried on in certain premises, partly owned by him and partly hired, and had covenanted not to open a like business, within a half mile, within five years, nor to permit any one to carry on the business in the Fifth avenue premises owned by him. The lease was given under this condition to Kernick, and before it expired it was sold to plaintiff. This personal covenant, under these circumstances, passed to plaintiff. It was bought by Kernick as incident to these premises, and was assignable.

The judgment should be affirmed, with costs.  