
    Ovington Brothers Company, Plaintiff, v. Cornelia M. Henshaw, individually and as executor of Sara Gracie, deceased, Defendant.
    (Supreme Court, Kings Special Term for Trials,
    May, 1905.)
    ¡Lease — Buildings to be erected — Lessor’s covenant to pay for.
    A covenant of a lessor that at the end of the term he would pay for buildings to be erected by the lessee does not run with the land and, therefore, the heirs, assigns, or devisees of the lessor are not bound thereby unless by express words.
    Tbial of an issue of law raised by a demurrer to the complaint by the defendant in her individual capacity that it does not state facts sufficient to constitute a cause of action against her individually.
    Action by tenant against landlord to recover the value of buildings erected on the demised preanises by the tenant during the lease.
    The lease contained a provision that if the lessees should rebuild the buildings, which had been destroyed by fire, “ The party of the first part (landlord) hereby agrees to pay for the buildings remaining on the premises at the expiration of the term hereby created ”; the amount to be fixed by arbitration, each side appointing an arbitrator and they two a third.
    The plaintiff is assignee of the lease and the defendant is devisee and executor of the lessor.
    George S. Ingraham for plaintiff.
    Henry C. M. Ingraham for defendant.
   Gaynor, J.:

The lease was assigned to the plaintiff during the term, and the defendant became the owner of the demised premises during the term, as devisee under the will of the lessor, and collected the rent. As the words of the agreement that the lessor shall pay at the end of the term for the buildings to be erected by the lessees during the term do not name the heirs and assigns of the covenantor, it is not a covenant running with the land, and therefore binding on the defendant as devisee. When the covenant is of a thing not in esse, as is the case here, i. e., to erect buildings on the demised premises, there is nothing for It to become appurtenant to, and heirs or assigns are not bound unless by express words. The covenant here was only the personal covenant of the lessor, and binds her executor only (Thompson v. Rose, 8 Cow. 266; Tallman v. Coffin, 4 N. Y. 134; Coffin v. Talman, 8 N. Y. 465 Countrymen v. Deck, 13 Abb. N. C. 105 note; N. Y. Dyeing & Printing Est. v. De Westenberg, 46 Hun, 281). The case of Schoellkopf v. Coatsworth (166 N. Y. 77)"isnot in point. There the agreement was such that the tenancy could only be terminated by the lessors giving a notice of six months to the tenant and becoming thereby bound1 to pay for the buildings, and their heirs or grantees were of course in the same position. The giving of the notice made them liable for the buildings, for that was the alternative of the contract.

The demurrer is sustained.  