
    John W. Storandt, Plaintiff, v. Vogel & Binder Company, Defendant.
    Fourth Department,
    November 15, 1910.
    Pleading — complaint against landlord for breach, of covenant and for interfering with, enjoyment of premises—when dismissal of complaint error — landlord and tenant — covenant to furnish heat and power — •covenant enforcible against grantee.
    A complaint against a landlord to recover for breach of a covenant to supply heat and power should not be dismissed at the opening of the plaintiff's case on the theory that the covenant applied to a building to be constructed in the future, if aside from that issue the complaint set up a claim for damages by reason of the landlord’s interference with the plaintiff’s enjoyment of the premises by obstructing approaches thereto.
    A covenant to furnish heat and power for demised premises is within the provisions of section 223 of the Real Property Law giving a lessee the same remedy against the grantee of his lessor for breach of covenant as he would have had against his immediate lessor. The failure to furnish power and heat affects the use and enjoyment of the premises, and the lessee may maintain an action for the breach against his lessor’s grantee where he has attorned to the latter.
    Such action may be maintained against the grantee for his failure to furnish heat to’a new building which, although not erected at the time the lease was drawn, was covered thereby and made part of the demised premises.
    McLennan, P. J., dissented.
    Motion by the plaintiff, John W. Storandt, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, the complaint having been dismissed upon the opening on a trial at the Monroe Trial Term in April, 1910.
    
      Frederick A. Mann, for the plaintiff.
    
      C. C. Werner, for the defendant.
   Kruse, J.:

The action is to recover for a breach of certain covenants contained in the lease made by the defendant’s immediate predecessor in title to the plaintiff. The plaintiff’s complaint was dismissed upon the opening, upon the ground that it failed to state a cause of action against the defendant. The plaintiff now moves for a. new trial upon the exceptions, which were ordered to be heard here in the first instance.

The lease is made by Leonard Yogel and L. Frank Binder to the plaintiff. It is dated April 1, 1901, and is for the term of five years from the 1st day of July, 1901, with the option to the lessee of an additional five years, of which he has availed himself. The lease covers the fourth floor of a certain building in the city of Rochester and an entire new building on a lot directly north thereof, with power and heat, as particularly stated in the' lease.

After the plaintiff had entered upon the possession of the demised premises under said lease, and on or about the 5th day of November, 1901, Yogel and the heirs and personal representatives of Binder (Binder having died) transferred the lease and conveyed the reversion to the defendant, and the plaintiff thereafter attorned to the defendant by paying the rent directly to it. The plaintiff has paid the rent in full as it matured, but the power and heat has not been furnished as covenanted in the lease. Since the defendant became the owner of the premises in November,' 1901, it has refused and neglected to furnish the same, so it is-alleged in the complaint, and the action is brought to recover the damages resulting from the breach of the covenant.

The record states that the motion dismissing the complaint “ is disposed of upon the lease as presented, and the complaint of the plaintiff, and upon counsel’s opening, by all of which it appears that the covenant complained of applied to a building yet to be constructed and power and heat not to be furnished from any particular place.” It is not clear from the. counsel’s opening that the lease was not executed until after the building was erected. His final statement is that the lease was left unsigned and was not executed until after the building was erected; that it was not fully executed until November following the date of the lease and after the lessee had taken possession, and that the building had been erected a month before that time. And besides, the covenant seems to apply to the old building as well as the new. Furthermore, the complaint sets up a claim for damages arising out of the interference with the plaintiff’s enjoyment of the premises by obstructing the approaches to and from these premises. I do not see how in any view it was proper to dismiss the complaint. The opening statement may not be as clear as it should be; but it should be considered in connection with the allegations of the complaint. (Hoffman House v. Foote, 172 N. Y. 348.)

The serious question arises upon the covenant to furnish power and heat. I am of the opinion that the defendant is liable upon the covenant, and that the liability extends to the new as well as the old building. The new building is described in and covered by the lease, and is a part of the demise, and the covenant relates to the use and enjoyment of the demised premises. Such a covenant is within the provisions of the Revised Statutes (1 R. S. 747, § 24), and the former Real Property Law (Gen. Laws, chap. 46 [Laws of 1896, chap. 547], § 193), now incorporated in substance in the Real Property Law (Consol. Laws, chap. 50 [Laws of 1909, chap. 52], § 223), which give the lessee the same remedy against the grantee or assignee of his lessors for the breach of an agreement contained in the lease that the lessee might have had against his immediate lessors. While that provision does not apply to every agreement contained in the lease, but such only as touch and concern the demised premises (Narman v. Wells, 17 Wend. 136), I think the covenant runs with the land and falls within the latter class. (Myers v. Burns, 35 N. Y. 269 ; Matter of Coatsworth, 37 App. Div. 295 ; revd., on other grounds, 160 N. Y. 114; Schoellkopf v. Coatsworth, 166 id. 77.)

Defendant’s counsel urges that the covenant does not run with the land because it relates to things not in existence when the lease was made, and the lease does not in terms bind the assignee or •grantee of the reversion to keep the same. The demised premises were in existence, and the failure to furnish the power and heat affected the use and enjoyment thereof. The complaint alleges, among other things, in substance that because of such failure he was unable to carry on his business and to use a part of the premises demised.

The rule is thus stated in Verplanch v. Wright (23 Wend. 506, 510): “ When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quoad modo annexed, and appurtenant to the thing demised, and shall go with the land and bind the assignee, although he be not named in express words; but when the covenant extends to a thing not in being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being.”

After citing cases, Nelson, Ch. J., who writes the opinion, continues : “ Accordingly, upon this distinction, a covenant for quiet enjoyment, for farther assurance, for renewal, to repair, pay rent, to discharge the lessor of charges ordinary and extraordinary, to cultivate the lands in a particular manner, to reside upon the premises, to supply them with good water, not to carry on particular trades, &c., have all been held to bind the assignee, though he be not named.” *

In Myers v. Burns (supra) an action was brought for rent by the grantee of the reversion against the assignee of the term. A counterclaim, upon a covenant requiring the landlord to keep the premises in repair, was set up. It was held that the covenant was a covenant running with the land ■; the amount of the recovery upon the counterclaim was not limited to the amount of rent due, but the lessee had an affirmative judgment against the grantee óf the reversion for the excess.

The grant to the defendant of the reversion carried with it the rent, and imposed upon the defendant the corresponding obligation to furnish, as covenanted, that for which the rent was paid.

The plaintiff’s exceptions should be sustained, and the motion for a new trial granted, with costs to the plaintiff to abide the event.

All concurred, Williams, J., in result only, except McLennan, P. J., who dissented upon the ground that the covenant does not run with the land and that plaintiff’s remedy is an action for a breach of contract.

‘Plaintiff’s exceptions sustained, and motion for new trial granted, with costs to plaintiff to abide event.  