
    Sigmund Leinhardt, Respondent, v. Dora Kalchheim, Appellant.
    (Supreme Court, Appellate Term,
    November, 1902.)
    Marketable title — Cloud.
    A written agreement, between owners, named Hilkemeyer and Sternkopf, of lots which adjoin, binding them, - their personal representatives and heirs, declared therein to be one which “ shall at all times be construed as a covenant running with the land,” limiting the depth to which foundations may be sunk on their respective lots at the line dividing them, and binding Hilkemeyer should he go deeper to protect at his own expense Stemkopf’s wall, is, whatever may be its precise legal nature, such a cloud upon the title of Hilkemeyer that a purchaser from one claiming under him should not be required to complete and particularly where Sternkopf is not before the court.
    Aureal by the defendant from a judgment and order of affirmance by the General Term of the City Court of the city of New York, of a judgment, entered upon the verdict of a jury directed.
    Jacob Levy, for appellant.;
    Jacob Rieger (Joseph Gans, of counsel), for respondent.
   MacLean, J.

In his action to recover downpayment and expenses, upon a contract for the purchase of real property of the defendant, the plaintiff claimed the right to reject, as he did on the day fixed for the closing of title, the deed therefor tendered by the defendant, on the ground that the property was incumbered and burdened, and discovered so to be only by search. The burden was a recorded agreement between one Hilkemeyer, of the first part, from and through whom is derived the title of the defendant, and one Sternkopf, of the second part, which reads:

“ Whereas, the foundations of the building of the party of the first part extends but nine feet in depth below the level of the curb, and should the party of the first part build his said new building with foundations extending ten feet below the curb, to underpier the foundations of the said house, and shore up the sidewalls of the building of the party of the first part thereby causing considerable expense and inconvenience to the party of the first part; and,
“ Whereas, in order to avoid said expense and inconvenience the parties to these presents have agreed as hereinafter mentioned.
“How, therefore, this agreement witnesseth: The party of the second part, in consideration of the sum of one hundred and fifty ($150) dollars to him to be duly paid, hereby agrees that in erecting the proposed building on his said lot of land, he will not build the foundations thereof any deeper below the level of the curb of the street than the depth of the foundations of the westerly Avail of the building of the party of the first part. In consideration thereof the party of the first part agrees to pay said sum of one hundred and fifty ($150) dollars to the party of the second part, and he also agrees for himself, his heirs, executors, administrators and assigns to and with the said party of the second part, his heirs, executors, administrators and assigns, that neither he the said party of the first part, his heirs, executors, administrators or assigns, will at any time hereafter in case he or they should erect another building on the lot of the party of the first part in the place and stead of the present building now thereon, build a foundation of the said new building any deeper below the level of the curb of the street than the foundations of the building of the party of the second part about to be erected by him, but in case he or they should build the foundations deeper than the foundations of the building of the party of the second part, he or they agree that they will properly underpin, shore up and protect the wall of the building of the party of the second part at their own costs and expense. It is understood and agreed that this agreement shall bind the heirs, executors, and administrators of the respective parties and shall at all times be construed as a covenant running with the land.”

This was hut a personal covenant and one that did not run with the land, contends and contended the attorney for the defendant, and urges that a direction of a verdict in favor of the plaintiff, and all sustainment thereof by the court below ivas error. As remarked in Mott v. Oppenheimer, 135 N. Y. 312, 319: The question whether a contract having relation to lands is personal, or whether it constitutes a charge upon the lands, obviously, must be determined by a consideration of the expressed intentions of the parties and of the existence of any interest in the land raised by force of its covenants.” This agreement, the parties have expressly declared, shall at all times be construed as a covenant running with the land,” therein and thereby evincing an intention to charge the land, notwithstanding failure to create such a covenant as they have determined in consequence of the absence of privity of ¿state. There ivas, however, the imposition of mutual restrictions upon the premises of each and the purchase and sale of . a right,' sometimes called an amenity,” chargeable upon the premises of the contracting parties, without regard to privity of estate or community of interest. Trustees v. Lynch, 70 N. Y. 440. Whether a covenant running with the land, or a right as above suggested,' or a mere personal covenant, there is a question of law of sufficient import, even of doubt, as to cast a shadow upon the title of the purchaser, if he be compelled to take, and leave him in doubt and unrelieved, particularly in the absence of him in whom the outstanding right is vested (Brokaw v. Duffy, 165 N. Y. 391), and so the judgment of the court below may well stand.

Judgment and order of the General Term of the City Court affirmed, with costs.

Freedman, P. J., and Blanchard, J., concur.

Judgment and order affirmed, with costs.  