
    This Corporation of the Brick Presbyterian Church in the city of New York against The Mayor, Aldermen, and Commonalty of the city of New York.
    The corporation of the York “conveyed lauds for of6 a Pchu°rch wMi T'fove’ nant for quiet :ñTm61aLr. wards, pursuant to a pow-the ^“legislahyle’iPwSS6droa hibiting Pthe lands as feeSafthís hela’ not a breach of the covenant. which entitled to damages, but if was a repeal of the covenant.
    A corporation cannot, by contract, abridge their legislative power.
    Where one covenants not .to do a thing which it is lawful for him to do ; and an act of the .bgislaturo comes after and compels him to do it; then the act repeals the covenant; and vice versa: but when a man covenants to do a thing which was unlawful at the time of the covenant, and afterwards a statute makes it lawful, it does not repeal the covenant.
    On demurrer to the plea, in an action on 'the covenant for enjoyment,
    
      Holden and G. Griffin, in support of the demurrer,
    cited Holder v. Taylor, (Hob. 12:) M’Gooch v. M’Gooch, (4 Mass. Rep. 348, 352 ;) Chisholm v. State of Georgia, (2 Dall. 419;) Paradine v. Jane, (Aleyn, 26 ;) Brason v. Dean, (3 Mod. 39 ;) 12 John. 122, 5 ; 3 John. 471; Com. Dig. Covenant, (D. 2,) (E. 1.)
    P. A. Jay and M. Ulshoeffer, contra,
    cited Norton v. Simmes, (Hod. 12;) F. Moore, 856, S. C.; Brewster v. Kitchen, (1 Ld. Raym. 317,) per Holt; Com. Dig. Covenant, (F;) 2 Gwil. Bac. 80 ; 1 Kyd on Corp. 271; Com. Dig. Covenant, (A. 3.); 1 Rol. 518; Cro. Eliz. 914; Noy. 50; 1 Lev. 94; Skin, 344; Bendl. Pl. 110; Hardr. 132; 2 Saund. 180; 1 Sid. 466; 3 Mod. 135; 1 Lev. 301; 2 Ventr. 62; 3 Lev. 305, 325; 8 Rep. 91; 2 Mass. Rep. 437; Com. Dig. Pleader, (C. 48 ;) Pomfret v. Rycroft, (1 Ventr. 44,) per Twisden, J.; 1 Sid. 429 ; Waldon v. McCarty, 3 John. 473,) per Spencer, J.; 2 R. L. 445, s. 267; Mayor v. Ordeneau, (12 John. 122 ;) Furman v. Knapp, (19 John. 248;) 1 Chit. Pl. 232, 3, 4 ; 4 Wheat. 652, per Marshall, Ch. Justice ; Watson v. The Master, &c. (14 Ves. 333 ; Auburn Academy v. Strong, (1 Hopk. Ch. Rep. 278 ;) Commonwealth v, Bird,) 12 Mass. Rep. 442; Gosler v. Corp. Georgetown, (6 Wheat. 597 ;) 4 T. R. 794 ; Fartitle v. Gilbert, (2 T. R. 169 ;) Pendleton v. Dyett, (4 Cowen’s Rep. 583 ;) 10 John. 96; 11 id. 443, and the cases there cited.
    The pleadings and points decided are stated in the opin- . ion of the court;. which was delivered by
   Savage, Ch. Justice.

This action is brought for an alleged breach of the covenant for quiet enjoyment.

On the 25th of February, 1766, the defendants conveyed to those whom the plaintiffs represent, the premises on which the brick presbyterian church now stands, in the city of New York. By the deed, the lessees covenanted for the payment of an annual rent, and also that, within ten years, thfe premises should be enclosed in a fence; and that a church should be built thereon, or the premises should be used as a cemetery ; and also that they should never be used for private secular uses.

The defendants then covenanted, that the lessees and their assigns, paying the rent and performing the conditions, should quietly use, occupy and enjoy the premises, without any let or hindrance of the defendants or any other person, &c.

The plaintiffs aver performance on their part, and a breach of the covenant on the part of the defendants, by reason of their by-law of the 27th of October, 1823, prohibiting the use of the premises, as a cemetery, for the interment of the dead.

The defendants, by plea, justify under their charter of inc0rp0ratj¡011. an¿ the act of the legislature of the state, (2 R. L. 445, § 267;) by which they have full power and authority to make and pass such by-laws and ordinances as they shall, from time to time, deem necessary and proper, “ for regulating, or if they find it necessary, preventing the interment of the dead within the said city.” To this plea the ° plaintiffs have demurred.

The principal question, and the only one which it is necessary to decide, is, whether the by-law of October, 1823, is per se, a violation of the covenant for quiet enjoyment, contained in the deed of the 25th February, 1766, for which the defendants are liable to pay damages.

The validity of the by-law is asserted'by both parties. We are relieved therefore, from any inquiry on that point.

The defendants are a corporation, and in that capacity are authorized by their charter, and by-law, to purchase and hold, sell and convey real estate, in the same manner as individuals. They are considered a person in law within the scope of their corporate powers ; and are subject to the same liabilities, and entitled to the same remedies, for the violation of contracts, as natural persons. They are also clothed, as well by their charter as by subsequent statutes of the state, with legislative powers; and, in the capacity of a local legislature, are particularly charged with the care of the public morals, and the public health within their own jurisdiction.

In ascertaining their rights and liabilities as a corporation, or as an individual, we must not consider their legislative character. They had no power as a party, to make a contract which should control or embarrass their legislative powers and duties. Their enactments, in their legisla-tive capacity, are to have the same effect upon their individual acts, as upon those of any other persons, or the pub-lie at large, and no other effect.

The liability of the defendants, therefore, upon the covenant in question, must be the same as if it had been entered into by an individual; and the effect of the by-law upon it the same as if that by-law had been an act of the state legislature. It is expressly authorized by the legislature; and whether it be their act or an act of the local city legislature, makes no difference. (4 Wheat. 652.)

The plaintiffs, then, are entitled to the same remedy as if the premises had been conveyed to them by an individual, under the like conditions and covenants. This being so, the defendant’s proposition is, that the act of the legislature rendering the covenant unlawful, the covenant itself becomes inoperative.

There are but few authorities on this question,and those few are at variance. The case of Brason v. Dean, (3 Mod. 39,) decided in 16S3, was covenant upon a charter party for the freight of a ship. The defendand pleaded that the ship was loaded with French goods prohibited by law to be imported. And, upon demurrer, judgment was given for the plaintiff; for the court were all of opinion, that if the thing to be done was lawful at the time when the defendant entered into the covenant, though it was afterwards prohibited by act of parliament, yet the Covenant was bindjng. But in the case of Brewster v. Kitchin, (1 Ld. Ray. 317, 321,) A. D. 1698, a different, and a more rational doctrine is established. It is there said, “ For the difference when an act of parliament will amount to a repeal of a covenant, and when not, is this : when a man covenants not to do a thing which was lawful for him to do, and an act of parliament comes after, and compels him to do it, then the act repeals the covenant, and vice versa. But when a man covenants not to do a thing which was unlawful at the time of the covenant, and aftci vards an act makes it unlawful, the act does not repeal the covenant.”

In 1 Salk. 198, Avhere the same case is reported, the proposition is thus stated : “ Where H. covenants not to do an act or thing Avhich Avas laAvful to do, and an act of parliament comes after and compels him to do it, the statute repeals the covenant. So if H. covenants to do a thing which -S lawful, and an act of parliament comes in and hinders him from doing it, the covenant is repealed. But if a man covenants not to do a thing Avhich then was unlaAvful, and an act comes and makes it lawful to do it, such act of parliament does not repeal the covenant.”

That such is the correct rule, as between individuals, geems be admitted by the counsel for the plaintiffs. But it is contended that the rule is not applicable to a case, where the same party makes the covenant, and afterwards makes the legislative act, which abrogates the covenant. There is indeed, a seeming inconsistency; but the solution has already been given, viz. that the defendants had no power to limit their legislative discretion by covenant; and they are not estopped from giving this answer. (2 T. R. 169.)

The reasonableness of acting upon the rule, in this case, cannot be more strongly exemplified, than by the case itself. Sixty years ago, when the lease was made, the premises were beyond the inhabited part of the city. They were a common; and bounded on one side by a vineyard. Now they are in the very heart of the city. When the defendants covenanted that the lessees might enjoy the premises for the purpose of burying their dead, it never entered into the contemplation of either party, that the health of the city might require the suspension, or abolition of that right. It would be unreasonable in the extreme, to hold that the plaintiffs should be at liberty to endanger not only the lives of such as belong to the corporation of the church, but also those of the citizens generally, because their lease contains a covenant for quiet enjoyment. Suppose these premises had been let for a certain purpose which is proper in itself, in a detached situation, but a nuisance in a city thickly inhabited—for instance, a slaughter house— could it be seriously contended, that when the use of the property in the way contemplated by the parties to the conveyance, was forbidden by the legislature, an action would lie against the grantor ? Such a rule, I apprehend, • would be extremely oppressive • and unjust, as to individuals ; and equally so, as to the defendants in this cause.

The defendants are entitled to judgment on the demiurer.

Judgment for the defendants.

END OP MAY TURK.  