
    August Uihlein and Michael J. McManus, Respondents, v. Margaret Matthews, Appellant, Impleaded with Others.
    
      Covenant not to sell liquor — when it runs with the land —it is not destroyed by a, ■quitclaim deed subsequently given.
    
    The owner of a building occupied as a saloon and restaurant conveyed three inches of land adjoining his building and the usó of a wall of said building to the owner of the adjoining lot, by an instrument containing a covenant, stipulated to run with the land, that the owner of the adjoining lot would “'not use or allow her said building to be used or occupied for a period of five years from, the date of this instrument as a place for the sale of ales, beers, wines or liquors. ’y
    
    Subsequently, for the purpose of quieting-the adjoining owner’s title to.a part of such adjoining lot, the owner of the saloon and restaurant executed to such adjoining owner a quitclaim deed, founded upon a valuable consideration, of .all the adjoining lot, which contained no stipulation concerning the sale of intoxicating liquors on the. premises.
    
      
      Eeld, that the restriction in the first-mentioned instrument was a valid condition running with the land and was enforcible against the owner of the adjoining lot and all persons who, with full knowledge of such restriction, leased the building erected on said lot;
    That the quitclaim deed did not operate to annul such restriction, especially as it appeared that, contemporaneously with the execution of the quitclaim deed, the parties entered into a written agreement reaffirming the prior contract.
    Appeal by the defendant, Margaret Matthews, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 7th day of August, 1900, upon the decision of the court, rendered after a trial at the Monroe Special Term, enjoining and restraining the defendants, their agents and servants, from selling intoxicating liquors upon the premises owned by the appellant for five years from May 4, 1898..
    In May, 1898, the plaintiff McManus owned a brick building fronting on West avenue in the city of Rochester and occupied by him as a saloon and restaurant. The defendant Margaret Matthews owned the premises adjoining him on the east, which consisted of a vacant lot fourteen feet in width. She desired to erect a brick building on her lot, and on May 4, 1898, entered into a written agreement with the plaintiff McManus, duly acknowledged and recorded, whereby McManus conveyed to her three inches of land east of the east wall of his building and also the use of his said wall as a party wall, and said Mrs. Matthews covenanted and agreed in consideration thereof that “'she will not use or allow her said building to be used or occupied for a period of five years from the date of this instrument as a place for the sale of ales, beers, wines, or liquors.”
    The agreement contained other provisions, including a right of way to McManus along the west side of the premises of said defendant also for the period of five years, but said-provisions are not in controversy in this action. The agreement further provided that its covenants and stipulations should operate “ as covenants running with the land.”
    In the year 1898, Mrs. McManus erected her building, making use of the east wall of said plaintiff as provided in the agreement. After its construction she applied for a loan, and it developed that a strip of ■ land two and one-half feet wide adjacent to the party wall was not included in her deed. McManus made no claim to this land, but after considerable negotiation and after an action had been brought to determine the ownership thereof, McManus, for a consideration paid him, executed and delivered a quitclaim deed to Mrs. Matthews which covered not only the strip of land in question, but the entire tract confessedly owned by her, and also the lot adjoining it on the east and to which neither of the parties had any title. The deed reserved to the grantor the right of way which extended along this strip, and also the opening in the walls, both of which had been provided for in the agreement referred to. There was no mention in the deed as to the use. of the premises for the sale of liquor, nor was the subject alluded to during the negotiations, except that McManus testified that he was assured that by giving the quitclaim deed he would not part with any of his rights. At the time of the delivery of the deed a separate agreement was entered into between the parties explanatory of the clause of the agreement of May 4, 1898, which provided for the extension of the west wall of the defendant’s building to the street line.
    In, January, 1899, McManus sold and conveyed his premises to the plaintiff Hihlein, and at the same time leased of his grantor and is now using the same for a saloon and restaurant. On July 1, 1899, the defendants O’Hara and Murphy leased of Mrs., Matthews her premises with knowledge of the covenant in the agreement with McManus by which she agreed not to use said building for the sale of intoxicating liquors. The building was leased specially for the sale of liquors, and the tenants carried on that traffic until restrained by a temporary injunction granted in this action which was commenced in August, 1899. Mrs. Matthews alone appeals.
    ' George JE. Milliman, for the appellant.
    
      Henry M. Hill and Seott Oumonings, for the respondents.
   Spring, J.:

The restriction in the deed that the premises of the appellant should not be used for the sale of intoxicating liquors was a. valid condition running with the land. (Plumb v. Tubbs, 41 N. Y. 442.)

Whether that covenant was destroyed by the subsequent quitclaim deed depends upon the intention of the parties at the time the deed was delivered. That intention is to be gathered from the instruments themselves and from all the circumstances and facts surrounding their execution. The quitclaim deed was delivered at the solicitation of Mrs. Matthews. It was for the particular purpose of clearing up the title to the narrow strip two and one-half feet in width. . McManus was not asserting title to this strip; he was effectually estopped by the agreement of May 4, 1898, from claiming ownership to it. That agreement was based upon mutual covenants, and it made the brick wall upon his premises a party wall and assured to him a right of way along this strip in controversy, and on the assumption that title to it was in Mrs. Matthews. These facts are incompatible with any claim by him to this property adverse to Mrs. Matthews. If he managed to extort money from her as a consideration for the quitclaim deed it was not for the reason that he was parting with any right in the land, but because in her stress she needed the deed to secure her loan. That the parties, did not intend that their rights were to be construed solely by the deed is obvious from the fact that contemporaneously with that conveyance they entered into a written agreement which reaffirmed their prior contract and explained what the intention was as to the extension of the west wall of the Matthews building. This is a cogent circumstance, indicating that the parties regarded the agreement as still in force and not annulled by the subsequent deed. It is not an independent agreement but a distinct adoption of the first contract. It would have been very easy for the parties to make the latter agreement a substitute for the preceding one, and in unequivocal terms to provide for its revocation. They abstained from doing this, and apparently were careful to recognize that agreement, and there is no suggestion in the oral proof that it was to be superseded by the deed. In view of these circumstances, it seems clear that the intention of the parties was to keep in life this first contract.

The reservation of the right of way in the quitclaim deed was proper, because that easement passed along the very piece of land which induced the deed, and that reservation in the deed, therefore, does not militate against the contention that the parties expected their original agreement was still operative.

The undisputed evidence shows, and the trial court has found, that the tenants of Mrs. Matthews leased with full knowledge of the covenant in the first agreement precluding her from selling intoxicating liquors on her premises. They, therefore, took title for the .purpose of operating a liquor saloon at their peril. (Hodge v. Sloan, 107 N. Y. 244; Rowland v. Miller, 139 id. 93.)

The judgment should be affirmed, with costs to the respondents.

' All concurred, except McLennan, J., not voting.

Judgment affirmed, with costs.  