
    ROBERTS against LEVY.
    
      New York Common Pleas; Special Term,
    
    
      November, 1867.
    Enforcement of Covenants.—Evidence in Mitigation of Damages.—Parties.
    A covenant entered into between owners of adjoining city lots, for themselves and all claiming under them, to the effect that all buildings erected on such lots shall be set back a specified distance from the line of the street on which the lots front—is a covenant which equity will enforce between the parties to it, in favor of one against the other, or in favor of and against any subsequent grantee of either lot.
    A subsequent purchaser of a lot subject to such a covenant, may be restrained from building in violation of the covenant.
    Such a covenant constitutes an “ incumbrance”- upon a lot to which it applies; and if the covenantor subsequently conveys by a deed containing the usual covenant against incumbrances, a breach of the latter covenant arises the instant the deed is executed.
    The right of action for damages for the breach of a covenant- against incumbrances may pass, in equity, as an incident, by. force of a conveyance of the land itself as the principal thing.
    The fact that a covenant constituting an incumbrance was upon record, whereby one who bought the land under a subsequent deed containing a covenant against incumbrances had constructive notice of it, does not affect his right to recover damages for the breach of the latter covenant.
    But if such purchaser had actual notice of the incumbrance at the time when he accepted the deed, it seems that this fact may be proved in mitigation of damages.
    Trial by the court.
    This action was brought by Marshall O. Boberts against Mark Levy, to recover damages for a breach of covenant arising out of the following facts. On the 9 th day of July, 1860, the defendant, and Sarah his wife, for a valuable consideration, by deed of indenture, conveyed to one Ann B. Phinney, in fee-simple, a parcel of land situated on the north side of Fourteenth Street, in the City of New York, described in the deed as beginning on the northerly side of Fourteenth Street and bounded by four lines, one of which was specified as running easterly “along the northerly side” of Fourteenth Street.
    Subsequently, and on the first day of May, 1863, the defendant, with Sarah his wife, by deed of indenture, conveyed to Ann B. Phinney, in fee-simple, another parcel of land, adjoining the lot above described, and which in the deed of conveyance was in like manner described as beginning on the northerly side of Fourteenth Street and bounded by four lines, one running “ along the northerly side of Fourteenth Street.”
    Each of the said deeds contained the following covenants : That the premises thereby conveyed were “ free, clear, and discharged and unincumbered of and from all other grants, titles, charges, estates, judgments, taxes, assessments and incumbrances of what nature or kind soever.” And also “ the said Mark Levy” (the grantee and defendant herein) “ and his heirs, the above and hereby granted and released premises and every part and parcel thereof with all appurtenances unto the said party of the second part” (the said Ann B. Phinney), “ her heirs and assigns, against the said party of the first part” (the defendant herein and wife), “ and their heirs, and against all and every person and persons whomsoever lawfully claiming or to claim the same, shall and will warrant and by these presents for ever defend.”
    ' At the time of the execution of the above deeds by defendant and his wife, the premises were in fact subject to a certain covenant and agreement entered into on the 26th day of May, 1845, between one John Townelle, who was at the time of the making of the covenant and agreement the owner of the parcels of land in question, and E. 0. Connell, James McCullough and others, the owners of certain lots lying west of them on the northerly side of Fourteenth Street, which covenant and agreement was as follows :
    “ Deeming it advisable and for the benefit of all and each of us, and for those who may hereafter derive under us, that the buildings to be hereafter erected on the above mentioned lots,” (said lots being from number one to number twenty-one, inclusive, and belonging to the several parties to the said agreement, including the two lots above mentioned) “ shall he set hack 
      
      from the present building line of said Fourteenth Street, in an equal line, and distant, northerly, therefrom, eight feet, so that all the buildings on said lots, so far as respects the fronts thereof in distance from the line of said Fourteenth Street, shall be uniform : We therefore, each of us, proimse for ourselves, our heirs, executors, administrators and assigns, to observe and perform this agreement the one with the other, and all of us in perfect good faith according to the true intent and meaning of this agreement.”
    This agreement was duly acknowledged and recorded. The two lots of land above described were a part of the estate of said John Townelle, one of the parties to the above agreement, and the defendant purchased them at a sale in a partition of the estate of Townelle made by order of the supreme court on the 11th March, 1859. In the report made by the referee appointed to examine into the title on such partition, he refers to the restrictive agreement above set forth, made between Townelle, Connell, and others, on the 26 th May, 1845.
    Ann B. Phinney (the grantee of defendant), died seized of the two lots above described; and on the 16th day of May, 1864, Theodore N. Phinney, executor, and Susan Phinney, and Mary D. West, executrices of the said Ann B. Phinney, by deed of indenture of that day, conveyed for the consideration of eighteen thousand five hundred dollars the above mentioned two lots situate on the north side of Fourteeth Street to the plaintiff. This deed of conveyance to the plaintiff was in the usual form of executor's deeds; it conveyed all the right, title and estate which the testator, Ann B. Phinney, had in the two lots at the time of her decease, and contained covenants against any act or acts of the executor or executrices by or through which the said lots could be charged or incumbered.
    The plaintiff claimed in this action that in consequence of the aforesaid agreement on the 26th May, 1845, and the restrictions and covenant therein contained, the two lots purchased by him were incumbered, and the value of the premises diminished ; and that he had been damaged thereby.
    The complaint averred that, relying upon the covenants contained in the deeds of the defendant to Ann B. Phinney, of the dates of July 9, 1860, and May 1, 1863, and in ignorance of the restrictions and incumbrances upon the premises created by the said agreement of May 26, 1845, the plaintiff employed an architect and caused plans and specifications to be made for a building for theatrical and other purposes, which should cover the entire premises, consisting of the two lots in question, conveyed by defendant to Ann B. Phinney, and by her executors to plaintiff. That under such plan, the plaintiff excavated earth, and built walls so as to cover the entire premises. That under threats of injunction made by owners of the adjoining lands, claiming under the agreement of May 26, 1845, plaintiff was obliged to pull down and remove a large portion of the wall he had built, and to fill up the excavations he had made, and to change the plan of his building. For these things, he claimed to recover damages from the defendant on the ground of a breach of the defendant’s covenant in his deed to Ann B. Phinney, which damages he laid at the sum of $10,000.
    The action now came on to be tried at the special term.
    
      Phelps & Fuller, for plaintiff.
    
      P. J. Joachimsen, for defendant.
   Van Vorst, J.

The agreement made on the 26th May; 1845, between John Townelle, the then owner of the two lots of ground in question, with E. 0. Connell and others, owners of adjoining lots on the street, by which the buildings which might thereafter be erected on the lots owned by the parties to the agreement, were to be set back from the building line of the street in'an equal line, eight feet did not constitute a dedication of the space so to be left open, in front of the buildings, to the public. But it is such an agreement as a court of equity will enforce between the parties to it, the one against the other, and in favor of and against any subsequent grantee of any of the lots. By the terms of this instrument a right, in the nature of a servitude or easement in the several lots, was created in favor of each owner in all the lots to which it relates. (Parker v. Nightingale, 6 Allen, 341.)

It is obvious that the parties to this agreement intended to impose a permanent restraint on the" mode of occupation of their several lots, so far as the eight feet in question was. concerned. This space it was agreed should not be built upon. It was agreed that it was for the benefit of all concerned that it should be left open. It is very certain from the language of this agreement that the parties meant that this restriction should be- a permanent charge on each lot, not only in favor of the then owners, but also of those who should derive title through them.

With such an easement and charge fastened on the two lots, to which the plaintiff has acquired title, through one of the signers of the agreement, it is quite clear that he could be restrained by the owners of the adjoining lots from building up to the street line. Plaintiff is as much bound to leave this space open in front of these two lots, in pursuance of the agreement between the original owners, as though he was actually a party to it. (Tallmadge v. East River Bank, 26 N. Y., 105; Hubbell v. Warren, 8 Allen, 173; Washb. on Easem., 63-65.)

This agreement creating this permanent easement on the two lots in question, is an incumbrance on the land, and runs with it; the grantee cannot remove it, except by the consent of all interested. The grantee is absolutely prohibited from using the restricted portion, except in a certain way. (2 Washb. on Easem., 658, §§ 13, 14.) The conveyances from the defendant to Arm B. Phinney contained a covenant that the premises conveyed were free, clear, discharged and unincumbered, from all charges and incumbrances of what nature or kind soever. The existence of this easement at the date of the conveyance of the property by the defendant, was a breach of the covenants in his deeds, and one of which the grantee, Ann B. Phinney, could have taken advantage in her lifetime, by action for the recovery of such damages as she could establish as incident to the breach.

The covenant against incumbrances is a personal covenant. If not true, there is a breach the instant the deed is executed.

A broken covenant does not run with the land; nor does it pass to the grantee in a conveyance of the land (3 Kent’s Com., 471). It is a "chose in action, and the right of action ¡ is supposed to remain in the covenantee and his personal rep- : resentatives. (Rawle, Cov. of Title, 374; Beddor v. Wachsworth, 21 Wend., 120.)

It was formerly the practice, upon the theory that a chose in action was not assignable, to allow an action to be brought for the breach of the covenant by the covenantee for the benefit of his grantee.

But I am of the opinion that all the remedies which Arm B. Phinney or her personal representatives had for a breach of the covenants in defendant’s deeds, passed to the plaintiff under the executors’ deed to him. The transfer of the land, the principal thing, should be held to imply in equity an assignment of all remedies under the covenant (Rawle, 377).

The fact that the agreement creating the restriction and easement was a matter of record, and that plaintiff had constructive notice thereof, is not enough to affect or defeat his remedy. I am of the opinion that it would be otherwise, if actual notice had been brought lo Mm or his agent at the time he took the deed.

If the plaintiff at that time actually knew of this agreement, evidence of such fact should be received by the referee hereafter appointed in mitigation of damages. Such evidence is not a contradiction of the deed, although it does not except the easement in question (Rycker v. Snyder, 9 Wend. 416.)

In fact I think that with actual knowledge the recovery of the plaintiff should be nominal only, not extending even to the moneys laid out by him in the attempted improvement of the eight feet, or the expenses incident to a change of his plan, because under such circumstances he went on in his own |wrong. And this is the more reasonable and equitable when it is considered that the restriction in itself is not necessarily a lisource of damage. The agreement asserts that the setting back of the houses eight feet was deemed by the parties to be beneficial to all concerned; this was doubtless so in contemplation of the property being used for private residences. With knowledge of the restriction, plaintiff would not be allowed to divert the property from such use as was deemed to be beneficial at the time he took his deed, and when defeated in such design, as far as the eight feet in question is concerned, by the force and effect of this agreement, seek to recover under the covenants in defendant’s deeds against incumbrances, the damages sustained by him in failing to carry out such attempt.

The plaintiff is entitled to recover in this action such damages as he can establish, incident to this breach of the covenants in defendant’s deeds to Ann B. Phinney against incumbrances. The legal representatives of Ann B. Phinney have parted with the estate and have received an adequate consideration therefor. They can succeed in no action for damages for the benefit of the estate of the deceased. The agreement of the 25th May, 1845, operates upon and affects this plaintiff only. He it is who is restrained by its terms. Whatever damages flow from this breach he suffers. He is the real party in interest. That the broken covenant does not run with-the land and pass to the assignee, but that the action may be brought in the name of the covenantees for the benefit of the grantee, raises only a technical scruple which is disposed of by the code of procedure; which enacts that all actions must be brought in the name of the real party in interest (Code § 111.)

It was stipulated on the trial, by the attorney and counsel ' for the parties to this action, that in the event it should be decided that the plaintiff was entitled to recover under the covenants against incumbrances contained in defendant’s deeds to Ann B. Phinney, it should be referred to some suitable person to be appointed by the judge before whom the trial was had, to take proof of and ascertain and report tire amount of damages which plaintiff is entitled to recover. It is directed, therefore, that it be referred to Nathaniel Jarvis, Jr., Esq., to ascertain and report the amount of such damages to the end that on the coming in of the report, judgment be entered herein accordinginly.  