text:
    ALFRED BLEWITT, Appellant v. WILLIAM B. BOORUM, et al., Respondents.

      Contract under seal, delivery of, parol evidence admissible to establish the fact that the delivery was conditional, and the condition never fulfilled.

    A sealed contract, not relating to an estate in lands, that was executed and delivered to take effect when some act had been done or condition fulfilled by one of the parties thereto, does not become binding upon the parties thereto until the act is done or condition fulfiled. Parol evidence is admissible to establish the facts relating to such conditional delivery and to the act and condition required to be done and fulfilled before the contract became of binding effect as between the parties. The contract in question was made by William H. Russell and the plaintiff, as parties of the first part, and the defendants, as parties of the second part, and by its terms the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a certain invention covered by a patent, issued to Russell, during the term of the patent ; and as consideration for such grant, the parties of the second part (defendants) agreed to manufacture the patented article and to pay to each of the parties of the first part the sum of two and one-half cents on each article manufactured as a royalty. This agreement was executed by all the parties under their respective hands and seals, and one copy so executed was actually delivered to the plaintiff. The answer admits the making of the contract, but alleges, as a defence, that it was agreed between the parties, at the time of making, that it was not to take effect as to the plaintiff until after he had acquired a one-half interest in the patent by the performance of an agreement between him and Russell, the other ]Jarty of the first part to the contract, for the purchase of said half interest. That the plaintiff never carried out nor fulfilled such agreement with Russell, and never acquired a half interest in the said patent, and subsequently abandoned all attempt to gain an interest in such patent, and relinquished and transferred to said Russell all his rights and interest in this contract.
    On the trial the defendants offered to prove, and did prove, by parol testimony, against the objection of the plaintiff, the oral agreement between the parties as stated; and upon this evidence the court found, as matters of fact, that at the time of the execution of the contract it was expressly agreed between the parties that it should not take effect as a contract until the plaintiff should have acquired a one-half interest in the patent from Russell, etc., and that the plaintiff had never acquired that interest. These findings were fatal to plaintiff’s case, if the evidence upon which they rested was admissible, and the only question presented on this appeal is whether or not it was error to receive such parol evidence.

      The court, on review, held as follows: (1) A deed of real estate delivered to . a party or to his authorized agent, and not to a stranger, is absolute, and parol evidence of conditions qualifying the delivery, or affecting its delivery, is inadmissible. (2) Parol evidence is admissible to prove that a writ- ' ten paper, not under seal, which in form is a complete contract, although delivered, was nevertheless not to become a binding contract until the | performance of some condition or act, the proof of which rested in parol evidence. (3) It remains to be fully determined what the rule is in regard to an instrument under seal which is not a deed or conveyance and does not relate to the transfer of the possession of land. Under this last point great confusion exists among the decisions. Formerly the tendency was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point at issue and now under consideration has never been put to rest.
    Á careful analysis of all the cases, with reference to the state of facts peculiar to each, shows that the existing confusion arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery, has been almost exclusively in cases of instruments under seal in which the delivery constituted or involved a symbolic transfer of the possession of land.

      Held, that after due consideration of all that has been urged on .both sides, the rule prohibiting parol evidence as to a qualified or conditional delivery should be confined to the class of instruments in which the delivery constitutes or involves a symbolic transfer of the title and possession of land. In this view of this case the evidence was properly admitted and the exceptions of the plaintiff are untenable..
    Before Freedman, Truax and McAdam, JJ.

      Decided May 4, 1891.
    Appeal from a judgment entered after a trial at special term dismissing the complaint with costs.

      Isaac N. Miller, attorney and of counsel, for appellant, argued:—
    . I. There was no defence to the action, all'of defendants’ testimony being inadmissible. The action was for an accounting under a sealed contract, which ¡contract was made a part of the complaint. The answer did not deny the- execution and delivery of the' contract, but alleged that plaintiff’s interest in and rights under the contract had been transferred to William H. Russell. The whole defence rests upon the evidence as to what occurred prior to the making and delivery of the sealed contract, which evidence was admitted on the theory that it might show a conditional delivery, though no conditional delivery had been pleaded. As it was uncontradicted that the contract was delivered to plaintiff, it was impossible to show a conditional delivery, as such a delivery must be made to a third party. No proposition is more thoroughly settled than this—it is •elementary law. Chitty on Contracts, § 4, Coke Litt., 36 A.; Kent’s Com., vol. 4, pp. 451-454; Cocks v. Barker, 49 N. Y. 110 ; Worrall v. Munn, 1 Seld. 233; Wallace v. Berdell, 97 N. Y. 13; Arnold v. Patrick, 6 Paige, 315; Wilson v. Dean, 74 N. Y. 531; People v. Bostwick, 32 Ib). 448; Webber v. Christian, 121 Ill. 92; Braman v. Bingham, 26 N. Y. 491; King v. Baldwin, 2 Johns. Ch. 557; Tibbitts v. Percy, 24 Barb. 39; Brown v. N. Y. C. R. R. Co., 44 N. Y. 85; Coese v. Peck, et al, 102 Ib. 515; Marsh v. McNair, 99 Ib. 180 ; Gavinzel v. Crump, 22 Wall. (U. S.) 319; Parish v. U. S., 8 Ib. 490; Green-leaf on Evidence, §§ 22, 275, 282; Coe v. Hobby, 72 N. Y. 141; Allen v. Jaquish, 21 Wend. 632; Eddy v. Graves, 23 Ib. 84; Halliday v. Hart, 30 N. Y. 493; .Hargrave v. Melbourne, 86 Ala. 270; Story on Contracts, 712-721; Seymour v. Cowing, 4 N. Y. Ct. of App. (Abb.) 205; Juilliard v. Chaffee, 92 N. Y. 534.
    II. The rule excluding oral evidence applies to all sealed instruments. The theory of defendants that this rule applies' only to deeds of realty is not sustained by a single authority. Arnold v. Patrick, et al, 6 Paige, 315 ; People v. Bostwick, 32 N. Y. 448; Van Bokkelen v. Taylor, 62 Ib. 105.
    III. Under the pleadings defendants were estopped from denying the ownership' .of plaintiff.- There being no allegation of fraud or mistake the contract amounted to an estoppel by deed, the recitals of which, alleging ownership in the parties of the first part could, not be contradicted by defendants. Herman on Estoppel, Book 2, § 575. Recitals in a deed are binding on the parties to it and those claiming under them, but not on strangers. West v. Pine, 4 Wash. C. C. 69; Bank of U. S. v. Blenning, 4 Cranch, 87.
    IV. Plaintiff was entitled to recover even upon the evidence as admitted. It is perfectly well settled that a party who seeks to avoid a contract must restore or offer to restore to the other, whatever he has received under the contract. Mumford v. Am. Life Ins. and Tr. Co., 4 N. Y. 463; Hogan v. Weyer, 5 Hill. 389 ; Fisher v. Fredenhall, 21 Barb. 82; Kneedler v. Sternbergh, 10 How. Pr. 67; Wheaton v. Baker, 14 Barb. 594; Jones v. Anderson, 82 Ala. 392. Such return or tender must be made promptly. A delay of four years is a confirmation of the contract. Fisher v. Fredenhall, supra. And a purchaser, even from a fraudulent purchaser, may object that the seller has not returned the consideration. Wheaton v. Baker, supra. Where a note has been given, the rescinding party must tender it back. Snow v. Alley, 144 Mass. 546.

      Putney, Bishop & Slade, attorneys, and John L. Bishop of counsel, for respondents, argued :—
    I. Upon this appeal the court can consider only the exceptions to rulings upon questions of law. The case on appeal as settled does not certify that all the evidence produced upon the trial is included in the case on appeal. In point of fact, the printed case contains in less than ten pages all of the oral evidence which the plaintiff saw fit to include in his bill of exceptions, but the oral evidence actually submitted to the judge who tried the case would easily cover five or six times as many pages. • The Court of Appeals in the case of Porter v. Smith, 107 N. Y. 531-534, considered the effect of appeal based on such a bill of exceptions, and held that, under the present Code, unless the case on appeal contained a certificate to the effect that all the evidence had been included the court could not review the findings of fact. The same question was considered by the Court of Appeals, in the second division, in Aldridge v. Aldridge, 31 State Rep. 948, where Judge Brown said: “We are of opinion that it was error for the general term to reverse the judgment upon the record before it. The case contains an exception to the finding I have quoted, but no statement that all the evidence given upon the trial is contained within it. The facts were not, therefore, before the general term for review, and the only questions it could properly consider were those of law.” And this court in Baker v. Crosby, 33 State Rep. 757, Judge Freedman writing the opinion, refused to consider exceptions to findings of fact, saying : “ Moreover, there is no certificate that the case contains all the evidence. This of itself is fatal to the contention of the appellant.” It follows, therefore, that each of the findings of fact must be taken to have been grounded, in and supported by the evidence adduced, and the question raised upon this appeal is not as to the sufficiency of that evidence, but as to whether or no the exceptions taken to the competency of the evidence were well taken. It is not open to the plaintiff to argue, as he undertook to do upon the previous hearing, that he was entitled to recover upon the evidence as admitted, because the evidence is not before the court, and because it must be conclusively presumed that the evidence admitted was sufficient to sustain the findings of fact actually made.
    II. None of the findings of the court are open to review. The findings of fact are, as we have seen, conclusive, owing to the manner in which the appeal comes up. The conclusions of law are equally conclusive. The only inquiry as to these conclusions is are they supported by the findings of fact? If the findings, of fact are correct the legal conclusions stated necessarily follow. No contention to the contrary was made on the previous hearing, and none can be fairly presented.
    III. The exceptions to the admission of evidence raise only one question, and that is, whether it was competent to prove by parol evidence that the written agreement was not to become binding until the happening of certain events, as testified to by the witnesses for defendants.
    IV. It is settled law in this state-that parol evidence is admissible to show that a written paper, which in form is a complete contract, of which there has been a manual tradition, was nevertheless not to become a binding contract until the performance of some condition precedent, resting in parol. Reynolds v. Robinson, 18 St. Rep. 235; 110 N. Y. 654; Harnickell v. New York Life Insurance Company, 111 N. Y. 390; Juilard v. Chaffee, 92 Ib. 529-535; Benton v. Martin, 52 Ib. 570 ; Abbott’s Trial Evidence, p. 294; Stev. Dig., chap. 12, art. 90; Pym v. Campbell,.6 E. & B. 370; Wilson v. Powers, 131 Mass. 539.
    ■ V. There is no exception to this rule arising from the circumstance that the signatures to the contract have seals attached to them. Language may be found in some opinions which would appear to indicate that there is a distinction to be made between sealed and unsealed instruments in the particular we are now considering, and which might convey the impression that the distinction existed, not in the purpose of the instrument, but in the mere accident of the presence or non-presence of a seal. Fortunately, upon looking into the cases it will .be found that the law is not open to the reproach, in this instance, of determining substantial rights by unsubstantial trifles. Upon an examination-of the authorities it will be found that in every instance where the judge wrriting the opinion has laid, down the rule as though a distinction existed be-, tween sealed and unsealed instruments, the remark was wholly obiter, or else the case was one of an unsealed instrument, or of a grant of land. No case. can be found, at any rate in this state, in which it; has been held as a rule of practical action determining, the rights of the parties litigant that it was incom-. petent to show a conditional delivery of an ordinary personal obligation in writing, simply from the circumstance that it had a seal attached. Cocks v. Baker, 49 N. Y. 110 ; Wilson y. Dean, 74 Ib. 531. The tendency of modern decisions has been to obliterate, more and more the distinction between sealed and unsealed instruments as not resting in any substantial rule of right, but as being merely a survival of a fiction which may have been helpful in bygone ages,, but which is no longer of practical utility. Ortman, v. Dickson, 13 Cal. 33; Barton v. Gray, 57 Mich. 634; Canal Company v. Ray, 101 U. S. 522-527; McCreary v. Day, 119 N. Y. 1; Bishop on Contracts, § 1046 ; Leake on Contracts, p. 802. Even with re-, gard to deeds, we think that an examination of the cases shows that a delivery to the grantee may be. shown to be conditional where there was no purpose to deliver the deed as an actual transfer of title., Bracket v. Barney, 28 N. Y. 333, 340 ; Ford v. James, 2 Abb. Dec. 159 ; Dietz v. Farish, 79 N. Y. 525.
   By the Court.—Freedman, J.

There is no certificate or statement that the case contains all the evidence. The facts, therefore, are not open for review and only questions of law can be considered. .

The contract sued on was made by William H. Bussell and the plaintiff, as parties of the first part, and the defendants, as parties of the second part. By it the parties of the first part granted to the parties of the second part the full and exclusive right and license to manufacture, sell and use a certain invention covered by a patent issued to Bussell during the term of the patent; and as consideration for such grant the parties of the second part (the defendants) agreed to manufacture the patented article and to pay to each of the parties of the first part the sum of two and one-half cents on each binder as royalty. The agreement was executed by all the parties under their respective hands and seals, and it was actually delivered to the plaintiff.

The answer admits the making of the contract sued on, and alleges, as a defence, that it was agreed between the parties at the time of the making of the contract that the same was to take effect as to the plaintiff only when he should have acquired a one-half interest in the patent by performance of a certain agreement that he (the plaintiff) had made with Russell, the other party of the first part to the contract in suit, whereby the plaintiff was to acquire from Russell a one-half interest in the patent; that the plaintiff never carried out such agreement with Russell, never acquired a half interest from Russell, and subsequently abandoned all attempt to obtain an interest in such patent, and relinquished and transferred to Russell all his right, title and interest under the contract.

At the trial there was no controversy as to the actual delivery of the contract, or a copy of it, to the plaintiff, but the defendants offered to prove the oral agreement between the parties as above stated and that the plaintiff had failed to acquire from Russell a one-half interest in the patent. The plaintiff duly objected to such evidence as inadmissible, but the court overruled the objection and received the evidence, to which ruling the plaintiff duly excepted. Upon the evidence thus received the court found, as a fact, that at the time of the execution of the contract sued upon it was expressly agreed between the parties thereto that the same was not to take effect as a contract until the plaintiff should have acquired a one-half interest in the patented improvement and letters patent in pursuance of the agreement between plaintiff and Russell, and that the plaintiff did not at any time acquire such half interest. The court also found, as a fact, that the contract was never delivered to the plaintiff as a subsisting legal obligation. These findings are fatal to plaintiff’s case, if the evidence upon which they rest was admissible, and the only question presented, therefore, is whether or not it was error to receive such evidence.

It is settled in this state that if a deed is delivered to a party or his authorized agent, and not to a stranger, it is absolute, and parol evidence of conditions qualifying the delivery is inadmissible. Worrall v. Munn, 1 Seld. 229, and cases there cited.

It is also settled that parol evidence is admissible to show that a written paper not under seal which in form is a complete contract, of which there has been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition resting in parol. Reynolds v. Robinson, 18 N. Y. State Rep. 235; Harnickell v. N. Y. Life Ins. Co., 111 N. Y. 390.

It remains to be seen what the rule is as to an instrument under seal which is not a deed and does not relate to the transfer of the possession of land.

Upon this point great confusion exists in the books. Formerly the tendency undoubtedly was to distinguish generally between sealed and unsealed instruments. Of late the tendency has been to disregard the distinction between sealed and unsealed instruments whenever it can be done without a violation of some settled principle of law. The precise point now under consideration has never been put at rest. In Dietz v. Parish, 79 N. Y. 520, Church, Ch. J., even says with reference to a deed: “ The court, in Kidner v. Keith, 109 E. C. L. R. 34, announced the well-established rule. It said: There is no doubt in point of law that where by express declaration, or from the circumstances, it appears that the delivery of a deed was not intended to be absolute, but that the deed was not to take effect until some contemplated event should have happened, the deed is not a complete and perfect deed until that event has happened.”

' A review of all the cases to which our attention has been called upon this point, would serve no useful purpose. Suffice it to say that a careful, analysis of them with reference to the state of facts peculiar to each, shows that the confusion which does exist arises not so much from the decisions as from dicta which are obiter, and that the strict enforcement of the rule which rejects parol evidence qualifying the delivery,' has been almost exclusively in cases of instruments under seal in which, the delivery of the instruments constituted or involved a symbolic transfer of the possession of land. After due consideration of all that has been urged on both sides, I am of the opinion that the rule prohibiting parol evidence as to a qualified or conditional delivery should be confined to the class of instruments last referred to, and that it should not be • extended generally to all executory contracts under seal. If this view is sound, the evidence in this case was properly admitted, and the exceptions taken by the plaintiff are untenable.

The judgment should be affirmed, with costs.

Truax and McAdam, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    JAMES F. PENDLETON, Appellant v. ALEXANDER JOHNSTON, Respondent.

      Jury.—Verdict, inadequacy of, and against evidence.

    The action was to recover the value of services rendered the defendant by plaintiff’s assignor as an attorney and eouncelor at law, and were claimed ' to have been of the reasonable value of $1,000. The jury were charged ' that if they believed the services were performed for the defendant, at ’ . his request, such services should be compensated for, and the jury might: give whatever sum they thought proper, not exceeding $1,000. No exception was made to the charge. The jury found a verdict for plaintiff ¡ for six cents only. Held, that the- exceptions appearing on the record' ' were utterly untenable, and the only substantial question in’esented for ' the consideration and review of the court relates to the alleged inadequacy of the verdict. Whenever the power of the court is invoked to ■ set aside a verdict for inadequacy, it should be a case where the prevailing party received a verdict for an amount less than any view of the testimony, consistent with the right of such party to a recovery, justifies. ■
    In view of the facts in the case, the controversy finally narrowed down to the question, whether any service, additional to what plaintiff’s assignor had been well paid for, and that were beneficial to the defendant, had' been rendered, and if so what was its reasonable value. Upon this ques- ' tion the state of the evidence was of such a character, especially in view of the admissions and testimony of the plaintiff’s assignor on his cross-examination, that the jury cannot be blamed for reaching a conclusion, that although some slight additional service was rendered its reasonable value was merely nominal. The extent of such additional service, and its reasonable value, rests exclusively upon the uncorroborated testimony . of .the plaintiff’s assignor, and from his admissions on cross-examination as to his retention of some interest in the claim, the jury were not bound' ' by his testimony, especially as his testimony as to value constituted only an opinion of a parly in interest. Held, that it is not a ease where the verdict can be disturbed for inadequacy.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal by the plaintiff from a judgment for costs entered. by the defendant upon the verdict of a jury in favor of the plaintiff for six cents, and also from an order denying plaintiff’s motion to set aside the verdict and for a new trial.

      A. Edward Woodruff, for appellant.

      David Leventritt, for respondent.
   By the Court.—Freedman, J.

The action was brought to recover the value of services claimed to have been rendered to the defendant by plaintiff’s assignor, an attorney and counsellor at law. The answer is substantially a general denial. At the trial evidence was given on both sides and the issues were submitted to the jury under a charge to which no exception was taken. The jury having found a verdict for the plaintiff for six cents only, and the exceptions appearing in the record being utterly untenable, the substantial question presented for consideration relates to the alleged inadequacy of the verdict. The power of the court to set aside a verdict for inadequacy cannot be, and has not been, questioned. But whenever its exercise is invoked, it should be made to appear that the prevailing party received a verdict for an amount less than any view of the testimony consistent with the right of such party to a recovery justifies.

The services sought to be recovered for in this action were claimed to have been rendered by plaintiff’s assignor to the defendant in connection with the failure of E. H. Jones & Co., of which firm the defendant was a member. It appeared at the trial that, at the instance of the defendant, plaintiff’s assignor was retained by a committee of creditors to represent the creditors of that firm, and to assist the defendant, at the expense of those creditors, in compromising and adjusting the affairs of said firm, and that for the services performed by plaintiff’s assignor pursuant to such retainer he received a compensation at least four times as large as the amount with which he had declared from the start he would be satisfied. In view of these facts the controversy finally became narrowed down to the question, whether any additional services beneficial to the defendant and not covered by the committee’s retainer were rendered by plaintiff’s assignor to the defendant and, if so, what their reasonable value was. Upon this question the state of the evidence is of such a character, especially in view of the admissions made by plaintiff’s assignor in the course of his cross-examination, that the jury cannot be blamed for having come to the conclusion that, although some slight additional service was rendered, its reasonable value was merely nominal. I have carefully read and considered the whole of the evidence appearing in the case, and I fail to perceive how the verdict can be disturbed. The extent of such additional service and its reasonable value rests exclusively upon the uncorroborated testimony of plaintiff’s assignor, and inasmuch as he inferentially admitted on cross-examination that notwithstanding. the assignment of his claim under seal to the plaintiff, he retained some interest in the claim, the jury were not bound by his testimony, especially as his testimony as to value constituted only an opinion.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concurred.


author: By the Court.—McAdam, J.

text:
    MARY E. BRADLEY, Appellant v. ISAAC WALKER, Respondent.

      Injunction, order of ex parte, vacation of, when it should he continued durr ing the pendency of the action.

    This action is brought by plaintiff to enjoin and restrain defendant, his agents,, etc., from building or permitting the.building or erection or use or maintenance of any structure, upon an alleged reserved space of land between the street line and a line drawn parallel thereto and eight feet therefrom, and that any structure already erected or in process of erection, in violation of the agreement set forth in the complaint, be ordered and adjudged tobe removed by defendant, and that the defendant be so enjoined during the pendency of the action; and for one thousand dollars damages.
    The complaint alleges the ownership in 1846 of sixteen lots of hind on the northerly side of Thirteenth street, between Broadway and Fifth avenue, in divers persons, naming the alleged respective owners of each lot. It further alleges that such owners agreed in writing to reserve or lease a space in front of said lots, as lies between the street and a line drawn parallel to said street, and a distance of eight feet therefrom, as and for an open space or court which should never at any time thereafter be appropriated for, or be in any manner occupied by, any edifice, building or wall, orbe in any manner obstructed other than by the necessaiy steps for entrance, verandas and balconies, platforms and pedestals and iron fences and railings connected therewith, and enclosing the same, and the foundations and copings upon which said iron fence or railing may be placed. An alleged copy of the agreement is annexed to the complaint. This agreement and the complaint recites that lot No. 47 was owned by Alonzo A. Alvord; that Susan Alvord (who was the" wife of Alonzo A. Alvord) acquired a triangd- . lar strip of land between lot No. 47 (one of said lots) and Thirtieth street from James W. Anderson and wife in 1883, but afterwards the owners of ■ said lots and parties to said agreement built houses on said lots in aoeordanee with the sámeV that by virtue of certain mesne conveyances from Lewis Beach, an owner, and one of the parties to said agreement, the plaintiff became seized of one of these lots; that defendant, by like conveyances fromAlgnzti A. Alyoi'd.and'Susan Alvord, his wife, became seized of said lot No.' 47,"together with the said triangular piece, and is building and threatens to build an addition and projection in front of the building on his lot on the space reserved as an open space or court in front of said lots by said agreement.
    An ex parle- order of injunction was made in the case by Judge Tbuax forbidding the violation of the covenant in the said agreement and the erection of said addition and projection. This order was vacated by the order of Judge Dugro and its continuance during the pendency of the action denied. This appeal is from the last-named order.
    It seems that Judge Dugro conceded that the merits were entirely with the appellant, but that the injunction should be vacated upon a question of law, namely : That the covenant which was violated, having been executed in 1846 by Mrs. Alvord, who wuis a married woman, although it was acknowledged by her, was not so acknowledged separate and apart from her husband, and that, therefore, no estate passed, and the defendant was not bound by the equity of the covenant.

      Held, that the covenant was not a conveyance within the statutory meaning of that term respecting the acknowledgment of conveyances by married women. It did not purport to grant or convey any estate, and none passed or was intended to pass by it. r Its objects were expressed by these words: “ The parties to these presents have agreed with each other to improve their said lots * * by leaving eight feet * * on the front thereof as an open space or court.” It was intended to insure uniformity of construction in the entire block that one might build his house back from the street eight feet without the light, air or vision being cut off by projections on either side. The execution of the plan by the parties was all that was necessary to make it binding upon those who agreed to it, or their successors in interest or estate. Such an agreement was a wise and beneficent one, and alike beneficial to all the owners. The objection to the defective acknowTedgment is personal to Mrs. Alvord, for she might at any time have corrected it, and no intervening right or equity prevents this from being done by her now if it were necessary; but it is not necessary. Mrs. Alvord is still living and has never repudiated the covenant and does not seek to do so. The houses were built on this block, in confirmity to this covenant, over thirty years ago. The houses were erected and the covenant consummated during the life of the husband whos e agreement (even regarded as a . conveyance) was valid while he lived by virtue of his exclusive right of • control and of 'sale. When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge which, like other charges, recognized in equity, becomes effective when . declared so by the courts. A wife under the law existing at the time might by her sole act charge her estate in equity under some circumstances in which she had not the power of conveyance. Mrs. Alvord charged her ■■ estate in this instance. It needed no conveyance or writing to create this easement, even if the right conferred rises to the dignity of that title. The act or consent of all those interested was sufficient.
    The authorities in this state go so far as to hold that these covenants run with the land, and without any assignments of the covenants may be enforced by any owner or occupant.
    Injunctions in this class of cases are granted and held almost as of course upon proof of a breach of the covenant. The defendant bought with knowledge of the covenant and took subject to it. It was binding upon the Alvords and is certainly valid as to the plaintiff, a remote grantee, charged with notice of the equity. The plaintiff fully established her right to equitable relief by injunction, and it was error to vacate the same. The order appealed from must be reversed and the application to continue the injunction granted, with costs.

      Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal from an order made at special term vacating an ex parte injunction, and denying an application to continue the same during the pendency of the action.

      G. W. Cotterill, attorney and of counsel, for appellant, argued:—
    I. One of the most meritorious and best settled principles of law is this, that where any one buys real estate, with notice of an equity attached to it, he buys at his peril. The proposition that an agreement solemnly executed under seal and entered into for common benefit, whereby houses are actually set back eight feet from the line, and have remained so forty-five years, can be repudiated and the entire street destroyed by reason of the facts that the acknowledgment of a married woman did not show that she was examined separate and apart from her husband, is so extraordinary as to require some reason or authority to sustain it. It is confidently believed in behalf of the appellant that no such authority or reason can be shown. On the contrary, the following propositions have been conclusively established: (1) Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. (2) That equity may be even collected from transactions independently of written agreement. (3) The notice may be implied from circumstances alone. (4) It is not necessary that any covenant of this character should run with the land, either as matter óf law or fact. (5) It is not necessary that it should be contained in the deed to the purchaser. The underlying principle is that “whenever a person who acquires a legal title, or an equitable title or interest in a given subject matter—even for a valuable consideration, but with notice that the subject matter is already affected by an equity or equitable claim in favor of another—takes it subject to that equity or equitable claim.” Pomeroy’s Eq. Jurisp., vol. 2, p. 14. The doctrine has been clearly stated in Hodge v. Sloan, 107 N. Y. 245, 250. In this case the grantee agreed to limit the use of his land in such a manner as would not interfere with the business of the grantor, and the court held that—“In order to uphold the liability of the successor in title, it is not necessary that the covenant should be one technically attaching to and concerning the land and so running with the title. It is enough that a purchaser has notice of it. The question in equity being, as is said in Tulk v. Moxhay, 11 Beav. 571; 2 Phillips, 774, not whether th.e covenant ran with the land, but whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor, and with notice of which he purchased. This principle was applied in Tallmadge v. East River Bank, 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and was held binding upon a subsequent purchaser with notice, although his legal title was absolute and unrestricted.” This case reviews many authorities and quotes Chancellor Cotterham as saying that where a covenant of this character has been entered into it would be most “unjust and unconscientious” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green. W. Eq. 537, wherein the Chancellor agrees with Chancellor Cotterham: in saying that “it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced create easements or are -of a nature to run with the land.” The case of Tallmadge v. East River Bank, cited supra, maintains this doctrine' in its strongest aspect. One of the leading' cases on this subject, and cited as such, is Whitney v. Union Railway Company, 11 Gray (Mass.), 363. The authorities, however, in this state go so far as to hold that these covenants run with the land, and without an assignment of the covenants, are enforceable; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brown v. Jones, 23 Barb. 153. One of the grounds upon which this right is put is “ when it appears by a fair interpretation of the words of a grant that it wras the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such right will be deemed appurtenant to the land of the grantor and binding.” Whitney v. Union R. R. Co., 11 Gray, 367 ; Hill v. Miller, 3 Paige, 455; Washburn on Real Prop., 649 (4th ed. ) On the general doctrine of the above cases this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr. 436. And the defendant was enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr. 177. This doctrine has been somewhat extensively referred to by us, not simply for the purpose of showing the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity and are enforced as a matter of strict justice. “ The injunction in this class of cases is granted almost as a matter of course upon the breach of a covenant. The amount of damages, and even the fact that the plaintiff has sustained any pecuniary damages, are wholly immaterial. In the words of one of the ablest of modern equity judges, “ it is clearly established by-authority that there is sufficient to justify the court interfering if there has been a breach of the covenant.

      It is not for the court, but for the plaintiff, to estimate the amount of damages that arises from the injury inflicted upon him. The moment the court finds that there has been a breach of the covenant, that is an injury, and the court has no right to measure it and no right to refuse to the plaintiff the specific performance of his contract, although his remedy is that which I have described—namely an injunction.” 3 Pomeroy's Eq. Jurisp., 1342, p. 372. The doctrine is well stated in a Rhode Island case. It is undoubtedly true, and has often been decided that when a tract of land is subdivided into lots and those lots are conveyed to separate purchasers, subject to conditions that are of a nature to operate as inducements to the purchaser, and to give to each purchaser the benefit of a general plan of building or occupation, so that each shall have attached to his own lot a right in the nature of an easement or incorporeal hereditament in the lots of the others, a right is thereby acquired by each grantee which he may enforce against any other grantee. Green v. Creighton, 7 R. I. 1.
    II. We show conclusively by the authorities cited below that the husband, Alonzo A. Alvord, had, by virtue of his marital right, the absolute and unqualified right to dispose of, and to sell all the interest of his wife, until the marriage relation ceased. In other words, she had no right to the property whatever as against him during her coverture. This agreement was entered into July 15, 1846; at this time the husband had the absolute disposition of the property by virtue of his marital right. On the 1st day of April, 1857, Alvord and his wife sold and conveyed these two lots to William Ryer and another. In the year 1857, the two houses were built on these lots, the Walker lot and the one next east. These are the two lots sold by Alvord and wife. It also appears by the affidavit of Mr. De Forest that his mother’s house was built in 1854 in conformity with and in reliance upon the covenants; and that all the houses have been built over thirty years; also in reliance upon the agreement. Now, Alonzo A. Alvord, the husband, did not die until the year 1862, as is shown by the affidavit of Mr. Hoyt, the attorney for the defendant. The houses were therefor erected and the agreement consummated during the life of the husband, whose agreement was therefore perfectly valid and in force by virtue of his exclusive right to sell. “ This right the law had cast upon the husband as an incident to the marital relation. It was his property, and remained subject to all the incidents of property in his hands.” Vartie v. Underwood, 18 Barb. 566. The .marital right beforé stated is fully set forth and discussed in the well known work Ewells Leading Cases, where is found the leading case of Robertson o. Norris. The foot-notes to this decision refer to all the text-books as sustaining the same doctrine, and to more than fifty cases. Chancellor Kent states the same doctrine in his commentaries, 2 Kent Com. 132. In regard to this matter of covenant, all the authorities agreed in the language laid down in Tallmadge v. E. R. Bank, 26 N. Y. 109, that the question is “ whether a party shall be permitted to use the land inconsistently with the contract entered into by his vendor and with notice of which he purchased. If an equity attached to the property, by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.”
    III. The authorities hold that a married woman can charge her separate estate by the way of servitude, as in this case, and she would be completely estopped. 2 Bishop on Married Women, § 212. Citing—Armstrong v. Ross, 5 C. E. Green, 109; Wilson v. Brown, 2 Beasley, 277; Harrison v. Stewart, 3 C E. Green, 451. In Pilcher v. Smith, 2 Head, 208 (Tennessee), McKinney, J., says: “The legal disability of coverture or of infancy, carries with it no .license or privilege to practice fraud or deception on other innocent persons, nor will the disability be permitted to protect them in doing so.” In the case of Hinckley v. Smith, 51 N. Y. 21, the court held that “ Coverture is not a defence to an action to compel the specific performance by a married woman of a contract for the purchase of land when she has a separate estate.” The allegation in the complaint and affidavit of Henry De Forest that all these owners built their houses in obedience to the covenant is not denied. All the other contracting parties and their grantees or representatives have spent large sums of money in the faith and confidence, not only that she in conjunction with her husband was seized in fee, but that she could not repudiate an act and at the same time retain the- consideration. She would therefore have no standing in equity, having the legal authority to contract for that estate. As to her separate estate she is in equity a feme sole, and as Story says, she is “ liable for all debts, charges, encumbrances and other engagements, which she does expressly or by implication charge thereon; for, having the absolute power of disposing of the whole, she may dispose of a part thereof.” Section 1399, of 2 Story, Eq.

    IV. It is, however, well settled that even if a woman .has not power to bind herself by covenant personally she. has power to bind her assignees. This was expressly decided in the case of Warne v. Routledge, 18 Equity Cases, 497.
    V. The agreement was not a conveyance. The statute in force at this time declared that “ the acknowledgment of a married woman residing within this State to a conveyance purporting to be executed by her, shall not be taken unless in addition to the requisites contained in the preceding section she acknowledge, on a private examination apart from her husband, that she executed such conveyance freely and without any fear or compulsion of her husband,' nor shall any estate of such married woman pass by any conveyance not so acknowledged.” 1 R. S. 758, § 10. The defendant has shown considerable industry in citing a great'number of cases bearing upon this point, but it will be observed that all of them actually related to deeds of conveyance, whereby title, ownership and estate pass. In none of them was there any allusion to air, light or vision. It is well settled that neither light, air nor prospect can be the subject of a direct grant. u They can only be secured by covenant, agreement or condition.” Gerard’s Titles to Real Estate, p. 667, note. As laid down by all the text writers, the right under this covenant was an incorporeal hereditament and is therefore incapable of conveyance. Washburn, 4th ed., p. 649. A servitude is not the subject of conveyance, but only of covenant, and there is no change whatsoever of ownership. McLarney v. Pettigrew, 3 E. D. Smith, 111.
    VI. It also appears that when the mutual agreement was entered into all the other parties actually transferred to the husband and wife, Alvord, all their interest in the light, air and prospect in front of their houses. This being transferred to them, they subsequently transferred all their rights to their grantees ; who asserted the same against the other parties and built accordingly. In other words, they held the other • parties strictly to the agreement, by building, and, as we say, “ in conformity to the covenant,” and which is nowhere denied. This would be sufficient of itself to bring the case within the doctrine of the St. Mark’s Place Case. Tallmadge v. E. R. Bank, 26 N. Y. 105.
    VII. The claim is made by the defendant that ten feet of the front of this building is not within the terms of the covenant on the ground that lot 47 was bounded on the south by a diagonal line running northeast, as shown on the diagram at page 21 of the case. It, however, appears that the land south of the diagonal line was purchased by Susan Alvord on the 26th day of November, 1853, and that the whole parcel was sold together on the first day of April, 1857, as one lot and was built upon in that year. It also appears by the express words of the agreement as follows: “ And whereas, the parties to these presents have agreed with each other to improve their said lots by leaving all such part of each thereof as lies between the said Thirtieth street and a line drawn parallel to the said street, and at the distance of eight feet therefrom, as and for an open space or court.” ' It also appears by the affidavit of Hy. W. De Forest that “ the houses on the north side of Thirtieth street between Fifth avenue and Broadway, excepting the ones on the corners, are all built on a line 8 feet from the street line, so as to present an unbroken and even front and in obedience to and conformity with the covenants contained in the agreement referred to above.” This is not denied, and it therefore stands admitted. Hence it is conclusive that the covenantees intended that the covenant should cover the gore or triangular space. There was an executed act which gave this all the force and effect of an executed contract, and it therefore comes squarely within the decision in the case of Tallmadge v. E. R. Bank, 26 N. Y. 109.
    VIII. It is conceded that this agreement was executed in 1846 by Alvord and his wife. In 1857 they conveyed to William Ryer, who built the houses in the same year in conformity to the covenant. If the interest under the agreement was real estate, or a right to an easement, there has been at least 33 years adverse possession and, indeed, with the knowledge and acquiescence of all the parties. This contention is supported by the opinion of Judge Earl in Ward v. Warren, 82 N. Y. 265. The doctrine of adverse possession as regards light, air and prospect is ably discussed in' the case of Parker v. Foot, 19 Wend. 216, where it was held that where there was an enjoyment of the easement for the period of twenty years, uninterrupted and not by leave or favor and was under a claim or assertion of right with the knowledge and acquiescence of the owner, even a grant will be presumed.

      Henry Hoyt, attorney and of counsel, for respondent, argued:—
    I. The agreement upon which plaintiffs rely, a copy of which is annexed to the complaint, contains no proof of execution by Susan Alvord, nor is there a subscribing witness to the signature. In its present form it must be rejected as evidence, and extrinsic evidence is inadmissible to prove its due execution. On the motion, which, if granted, in the court below, would have entailed serious injury and great pecuniary loss on defendant, plaintiff was bound primarily to present satisfactory proof to the court of her ability to establish the agreement which is the foundation of her cause of action, and the necessity for exacting such proof becomes apparent from the agreement itself, which purports to have been executed in 1846, over forty years ago. The agreement in question, as it appears of . record, shows that there is no subscribing witness to the execution by Susan Alvord, and her acknowledgment thereof is defective, for the reason that no separate acknowledgment and examination were made. “ The acknowledgment of a married woman residing within this state to a conveyance purporting to be executed by her, shall not be taken, unless in addition to the requisites contained in the preceding section she acknowledged, on a private examination apart from her husband that she executed such conveyance, freely and without any fear or compulsion of her husband; nor shall any estate of such married woman pass by any conveyance not so acknowledged.” There can be no presumption in favor of the validity of an acknowledgment, the form is statutory and must be strictly observed, and if not, the general presumption of law is that the wife was acting under the compulsion of husband. A Deed of Contract conveying or agreeing to convey an estate, where the legal estate is in a feme covert, if not acknowledged by her according to the statute, is void in equity as well as law. Knowles & Hume v. McCainley, 10 Paige Ch. 342. No estate passes except the conveyance is acknowledged as required by law. The disabilities of the wife are only removed by a strict compliance with the statute. Elwood v. Klock, 13 Barb. 54. The deed of a feme covert not acknowledged according to the statute, forms no consideration for a promise to pay the purchase money. Martin v. Dewelly, 6 Wend. 14. Citing Jackson v. Stevens, 16 Johns. 114; Jackson v. Cairns, 20 Ib. 303 ; Doe v. Howland, 8 Cow. 277. A deed executed by a feme covert is not binding on her until acknowledged, and her subsequent acknowledgment does not relate back to the time of the acknowledgment of the deed. Jackson v. Stevens, 16 Johns. 109. Where a wife does not acknowledge according to the statute her right is not divested. Jackson v. Cairns, 20 Johns. 303. To the same effect: People v. Galloway, 17 Wend. 538. The deed of a feme covert is void at common law, not merely voidable; and though she acknowledge the execution after her husband’s death, this shall not relate to the time of the original execution. It can be made operative only in virtue of an acknowledgment under the statute. Doe v. Howland, 8 Cow. 277. By the principles of the common law, if the wife, at the time of or during marriage, were seized of an estate of inheritance in land, the husband upon the marriage became seized of the freehold jure uxoris,
      and he took the rents and profits during their joint lives. After her decease, if entitled to it, he had his estate of courtesy therein. If she survived him, she took the estate in her own right. If the wife dies before the husband, without having had issue, her heirs immediately succeed to her estate. 2 Kent, 130, 133; 2 Blackstone, 126; Vartie v. Underwood, 18 Barb. 561.
    II. It is sought by the complaint herein to attach the covenants and condition of the agreement alleged to have been made in 1846 to the triangular strip of land lying between said lot 47 and the northerly side of 30th street, which was acquired six years thereafter by Susan Alvord, in 1853. This was after the enabling statutes of 1848 and 1849, and consequently the husband of said Susan Alvord had no interest in such land. The principles of law adopted in cases where one having no title to lands executes a deed thereof or mortgage thereon Avith covenants of seizin and of title, and afterward acquires title, it inures to the benefit of . the grantee or mortgagee, and the grantor or mortgagor and his privies in estate, in blood and law, are estopped from questioning that, at the date of the deed or mortgage the grantor or mortgagor had title, is not applicable to this case. Teft v. Munson, 57 N. Y. 97. There is nothing in the agreement or complaint which indicates or contemplates that any subsequently acquired property' shall be subject to its terms, nor is there anything in said agreement Avhereby Susan Alvord claimed or pretended that she was the then owner of the triangular strip, and that she contracted with reference to it. Estoppel cannot be urged against a person who has no power to contract. A feme covert not being bound by a covenant of warranty contained in a deed executed by her and her husband jointly, for the purpose of con\r eying land which the husband holds in the right of his wife, such covenant will not operate by way of estoppel sc as to vest an interest subsequently acquired by her in the grantee in the deed. Carpenter v. Schermerhorn, 2 Barb. Ch. 314; Martin v. Dewelly, 6 Wend. 9 ; Clowes v. Vanderheyden, 17 Johns. 167. A feme covert cannot bind herself personally by a covenant or contract during her coverture. Therefore, a deed executed by husband and wife, with covenant of warranty, does not estop the wife, in an action of execution against her, after the death of her husband, from setting up a subsequently acquired interest in the same lands. Jackson ex dem. Clowes v. Vanderheyden, 17 Johns. 167. The doctrine that a wife is bound - by her covenant of warranty, entered into during coverture, is considered by Chancellor Kent, 2 Kent’s Com. 140, as at war with the established principle of the common law. Martin v. Dewelly, 6 Wend. 14.
    III. As tor feme coverts, the law is the same with respect to their power of contracting, as of infants, for they have no will but the will of their husbands, and in this equity follows the law. That a wife cannot contract either at law or in equity is decided by Sutherland, J., in Martin v. Dewelly, supra.

   By the Court.—McAdam, J.

The covenant was not a conveyance within the statutory meaning of that term, respecting the acknowledgment of convejmnces by married women. (1 R. S., 758, sec. 10.) It did not purport to grant or convey any estate and none passed or was intended to pass by it.

It is somewhat analogous to the right conferred in McLarney v. Pettigrew, 3 E. D. Smith, 111, in which it was held that an agreement, that beams might be inserted in the wall of plaintiff’s house, for the permanent support of the adjoining house, did not convey an interest in real estate and did not require a writing. The same principle has been applied to party walls. Bosworth, J., in Maxwell v. East River Bank, 3 Bosw. 146, said: “We regard it as settled law, that when the owners of adjoining lots agree, though verbally, that each will erect a building or store on his own lot, and that the dividing wall shall be a party wall, and shall be used. to support the beams and roof of each building, and they build according to such agreement, and with a view to execute it, neither can remove or do anything to impair the ability or sufficiency of such wall, so long at least, as the buildings continue in a condition to subserve in every substantial respect the uses for which they were erected.” The covenant executed by Mr. and Mrs. Alvord and their neighbors indicated no purpose to convey. Its object is expressed in these words. “ The parties to these presents have agreed with, each other to improve their said lots * * * # by leaving eight feet * * * * 0n the front thereof as an open space or court.” It' was intended to insure uniformity of construction in the entire block, that one might build his house back, eight feet, without having the light, air or vision cut off by projecting buildings on either side, and the execution of the plan in. consummation of the understanding was all that was necessary to make it binding on those who agreed to it, or their successors in interest or estate.

Such an agreement is a wise and beneficent one, alike beneficial to all the adjoining owners. . The agreement was made July 14, 1846, and though the title stood in the name of Mrs. Alvord, the husband, under then existing laws, had by virtue of his marital right, the jus disponendi of the property .until his marital relation ceased. He and his wife joined in the execution of the .covenant. The record shows a proper acknowledgment by him, but the certificate as to her is not in conformity to the technical requirements of the then existing statute, in regard to the form of acknowledgment required by a married woman. The objection to the defective acknowledgment is personal to her, for she might at any time have corrected it by a new acknowledgment or deed of confirmation, which by way of ratification would have related back to the time when the act needing confirmation was performed. No intervening right or equity prevents this from being done now if it were necessary, but it is not. Mrs. Alvord is still living, but has never repudiated the covenant and does not seek to do so. The houses on the block have been built over thirty years and all in conformity to the covenant. Alonzo A. Alvord, the husband, did not die until 1862, and the houses were therefore erected and the agreement consummated during the life of the husband, whose agreement even regarded as a conveyance, was valid, while he lived, by virtue of his exclusive right of control and of sale. (Ewells Leading Cases, 478; 2 Kent's Com. 132; Vartie v. Underwrood, 18 Barb. 566.) When the covenant was executed the land of the Alvords received a benefit, and on it was created a corresponding charge which, like other D charges recognized in equity, becomes effective when declared so by the courts. (2 Bishop on Married Women, 212.) A wife even under the then existing law might, by her sole act, charge her estate in equity under some circumstances in which she had not the power of conveyance. (Ib. Story's Eg. Jur., 1399, and see cases collated in Voorhies Code of 1859, p. 173.) She charged it in this instance. It needed no conveyance or writing, to create the easement, even if the right conferred arises to the dignity of that title. The act or consent of those in interest was sufficient. This is established by the case of Tallmadge v. The East River Bank, 2 Duer, 614, affd. 26 N. Y. 105, where the equity in regard to the manner of improvement and occupation of certain land grew out of a parol contract made by the owner with the purchaser, and it was held binding upon a subsequent grantee with notice, although his legal title was absolute and unrestricted.

This case reviews many authorities and quotes Chancellor Cottenham assaying, that where a covenant of this character has been entered into it would be most “ unjust and unconscientious ” not to enforce it. The opinion also quotes the case of Brewer v. Marshall, 4 C. E. Green, W. Eq. 537, wherein the court agrees with Chancellor Cottenham in saying, that “ it will be found upon examination that these decisions proceed upon the principle of preventing a party having knowledge of the just rights of another from defeating such rights, and not upon the idea that the engagements enforced, create easements or are of a nature to run with the land.”

Tallmadge v. East River Bank (supra), maintains this doctrine in its strongest aspect. In that case Davis exhibited a plan of intended location of lots on St. Mark’s Place, showing that the houses Avere to be set back eight feet. No mention of this whatever was made in the conveyances. The court held that, “ It is to be presumed that they would not have bought and paid their money except upon this assurance. It is to be presumed that relying upon this assurance, they paid a larger price for the lots than otherwise they would have paid. Selling and conveying the lots under such circumstances and with such assurances, though verbal, bound Davis in equity and good conscience to use and dispose of all the remaining lots so that the assurances upon which Maxwell and others bought their lots could be kept and fulfilled.' This equity attached to the remaining lots so that any one subsequently purchasing from Davis any one or more of the remaining lots, with notice of the equity existing between Davis and Maxwell and others, the prior purchasers, would not stand in a different situation from Davis, but would be bound by that equity.”

And the court further held “ that the uniformity of the position of all the houses on St.- Mark’s Place was probably sufficient alone to put the defendant on inquiry.” (See, also, Maxwell v. East River Bk., 3 Bosw. 124 ; Perkins v. Coddington, 4 Robt. 647 ; Green v. Creighton, 7 R. I. 1.)

One of the leading cases on this subject is Whitney v. Union Railway Company, 11 Gray (Mass.), 363, where the same opinion is held in the following language : u In like manner, by taking an estate from a grantor with notice of valid agreements made by him with the former owner of the property, concerning the mode of occupation and use of the estate granted, the purchaser is bound in equity to fulfil such agreements with the original owner, because it would be unconscientious and inequitable for him to set aside and disregard the legal and valid acts and agreements of his vendors in regard to the estate, of which he had notice when he became its purchaser. In this view the precise form or nature of the covenant or agreement is quite immaterial. It is not essential that it should run with the land.”

The authorities, however, in this state go so far as to hold that these covenants run with the land, and without an assignment of the covenants, are enforcible ; and any owner as well as occupant can enforce the right. Trustees, etc., v. Cowen, 4 Paige, 511; Brouwer v. Jones, 23 Barb. 153.

One of the grounds upon which this right is put is, when it appears by a fair interpretation of the words of a grant that it was the intent of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, such right will be deemed appurtenant to the land of the grantor and binding.” Whitney v. Union Ry. Co., 11 Gray, 367; Hills v. .Miller, 3 Paige, 254. Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement than an operative easement in favor of tenement itself.” Washburn on Real Prop., 4th ed., 649. On the general doctrine of the above cases, this court ordered a projection of the Burlington flats (in the same street) to be removed. Dubois v. Darling, 44 N. Y. Supr. Ct. 436. And a defendant was enjoined from maintaining a tenement house. Ammerman v. Dean, 57 N. Y. Supr. Ct. 175. This doctrine has been somewhat extensively referred to by us, not merely to illustrate the principles upon which it stands, but for the purpose of showing that these covenants are held sacred in equity and are enforced as a matter of strict justice.

Injunctions in this class of cases are granted almost as of course upon proof of a breach of the covenant. (3 Pom. Eg. Jurisp., p. 372, § 1342; Bispham Prin. of Eg., p. 414, § 461, and see Stewart v. Winters, 4 Sandf. Ch. 587.) The Alvords compelled all the other property owners to build on the line, and held them to the agreement,- and it is now claimed by their remote grantee, that although he had notice of the covenant, and' knew of the prior equity, he can disregard it, and build out to the line of the street, and exclude the adjoining owners from light, air and vision on the technical ground that Mrs. Alvord was incompetent to contract, and that her husband’s power of control terminated with his death in 1862, and hence whatever vitality the covenant ever had, ceased at that time. In other’words, that notwithstanding these facts, (1) that the covenant may have been valid in 1846 ; (2) that Mr. and Mrs. Alvord sold the property in 1857 with reference to it, and without repudiation ; (3) that the covenant had been fully executed by the erection of' buildings ‘in conformity to its terms over thirty years ago, yet, in consequence of Mr. Alvord’s death in 1862, the covenant was spent and is now inoperative. No logical reasons have been advanced to support such an extraordinary claim, and our intention has not been called to any direct authority which sustains the proposition stated.

The defendant bought with knowledge of the covenant and took subject to it. (2 Pom. Eq. Jurisp., p. 14; Hodge v. Sloan, 107 N. Y. 245, 250; Trustees of Columbia College v. Lynch, 70 Ib. 450.) It was binding on the Alvords and is certainly valid as to him, a remote grantee charged with notice of the prior equity. (lb.) We are next called upon to consider the objection urged by the defendant, that ten feet of the front of the building is not affected by the covenant. This triangular piece was purchased by Susan Alvord, November 23, '1853, to straighten the line of her lot,. and the whole parcel was sold together as one lot, April 1, 1857, and it was built upon during that year, in conformity to the requirements of the covenant, and thus the entire structure is brought within its provisions, by the principles declared in Tallmadge v. The East River Bk., supra. The point, as to change of character of the neighborhood is equally without merit. Where the use of land is restricted to private residences and changes in the neighborhood unfit the property for that use, this circumstance may operate to defeat the covenant in that regard. Trustees of Columbia College v. Thatcher, 87 N. Y 311. The necessity presented for relaxing the rule in that case does not exist here. The covenant is of a different character, and falls within the principles decided in Lattimer v. Livermore, 6 Daly, 505, affd. 72 N. Y. 174, in which it was held that a covenant for the enjoyment of light, air and vision, was not discharged by a mere change of neighborhood, as there was no reason why an adjoining property owner by that circumstance should have less of either than his covenant called for.

The plaintiff established her right to equitable relief by injunction, and it was error to vacate the temporary writ. The order appealed from must, therefore, be reversed and the application to continue the injunction granted, .with costs.

Freedman, J., concurred.


text:
    JOHN BERENBERG GOSSLER, et al., Respondents v. JACOB H. LAU, et al., Appellants.

      Demurrer to counter-claim in answer on the ground that it does not state facts sufficient to constitute a cause of action.

    The facts in the case fully appear in the opinion, of the court.
    On the review Held, construing all the allegations of the answer as favorably to the defendants as the rules permit, the answer merely shows that the plaintiffs should not have advanced their money on the draft without first obtaining clean bills of lading without any qualification whatsoever. The plaintiffs were not the shippers of the goods; did not obtain the bills of lading from the carrier, but from Braun and Bloem, the parties from whom the defendants received the goods. The plaintiffs were not the agents of the defendants in the sense that imposed upon them the duty of seeing to the manner of shipment of the goods, or to the phraseology of the bills of lading, or if communicating to the defendants the mode of shipment or contents of the bills of lading. All these, and such like things, were matter of concern between Braun and Bloem on the one hand and the defendants on the other. There being no duty, and consequently no breach, the defendants could not have svrffiered any damage from any act or omission of the plaintiffs in the premises, and hence the counter-claim alleged no cause of action against them. For these reasons, without considering the other objections raised and urged to the answer, on the ground that it contains conclusions instead of facts, the demurrer was properly sustained.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.

      Appeal from interlocutory judgment entered on order sustaining the demurrer interposed by the plaintiffs to the counter-claim set up by the defendants.

      Wing, Shoudy & Putman, attorneys, and J. A. Shoudy of counsel, for appellants, argued:—
    I. It was proper pleading to refer to the allegations, admissions and denials of the preceding first defence without restating them. By reference thereto those allegations became part of the second defence, by adoption, as really as if they had been again set forth in words. Xenia Bank v. Lee, 2 Bosw. 695; Williams v. Richmond, 9 How. 522; Hammond v. Earl, 58 Ib. 437.
    II. The facts alleged in the second defence of the answer contain a good cause of action. The substance of the allegation is : (a) That by the agreément between the plaintiffs and the defendants the plaintiffs undertook to accept the drafts drawn by Braun & Bloem for the purchase price of blasting caps bought from them by the defendants and shipped from Hamburg to New York when such drafts were accompanied by a clean and ordinary bill of lading showing such shipment, (b) The plaintiffs well knew that Braun & Bloem had no right to receive a qualified bill of lading, and that plaintiffs had no right to accept a draft accompanied by a bill of lading stating that the goods were shipped on deck at shippers’ risk. (c) That defendants purchased of Braun & Bloein the forty cases of blasting caps referred to in the complaint at a price which would have realized them a profit of $2,108.64 if properly shipped; that a bill of lading was accepted therefor which provided that the same should be carried on deck at shippers’ risk and plaintiffs, with full knowledge of the facts, wrongfully accept the draft drawn accompanied by such bill of lading. (d) That defendants, in pursuance of their contract and without knowledge of the peculiar manner in which the shipment had been made, procured insurance under their open policy as for-an ordinary shipment, (e) That plaintiffs, knowing all the facts, carelessly and negligently omitted to notify the defendants of the manner of shipment so that defendants could have procured insurance which would have covered the loss. (/) That the goods were wholly lost at sea, and having been shipped at defendants’ risk the policy did not attach and defendants lost the benefit of the insurance ; lost the goods, and lost their profits thereon. The difference between an ordinary clean bill of lading and one qualified by the provision that the goods are to be carried on deck is very wide and is well recognized. The “ ordinary ‘ clean ’ bill of lading, that is to say, a bill of lading which is silent as to the place of stowage, imports a contract that the goods are to be stowed under deck ” and parol evidence is inadmissible to show that they were to be stowed on deck. The Delaware, 14 Wallace, 579. To the same effect. Creery v. Holley, 14 Wend. 26. A bill of lading which not only states that the merchandise is shipped on deck but also that it is at shipper’s risk, practically does away with the liability of the carrier. The acceptance by the plaintiffs of a draft drawn by Braun & Bloem accompanied by such a bill of lading Avas clearly in violation of the defendants’ rights. The plaintiffs had no right under the agreement, as alleged, to accept anything other than the usual, and ordinary bill of lading. They had no right to exempt the carrier from liability at the expense of the defendants. For the purposes of the acceptance of the bill of lading and the bill of exchange the. plaintiffs were the agents of the defendants and bound to protect the rights of their principals. Having accepted this qualified and peculiar bill of lading for and on behalf of the defendants, the plaintiffs were bound to promptly notify the defendants of the manner of shipment, so that the defendants could have by a special application for insurance and by paying the increased premium, have insured their interest in the merchandise and saved themselves from loss. The plaintiffs must be presumed to have known that, any ordinary insurance would not cover merchandise thus shipped.
    III. On the argument in the court below, it was suggested that inasmuch as the acceptance of the bill of lading was not authorized, that therefore the merchandise was not the property of the defendants, and they had no claim for loss of profits. While there is an air of plausibility in this suggestion, it is essentially unsound. In the first place, the plaintiffs have no right to take any such position. They cannot say, “ You are hot harmed, because by our unauthorized act we did not bind you, and therefore you are not the purchasers of the merchandise, and not entitled to the profits.” They assumed to act as agents for the defendants, and they are estopped from alleging their want of authority; and, in the second place, the suggestion ignores the fact that plaintiffs had already purchased the property of Braun & Bloem, as is in the answer alleged, and they were therefore entitled to the benefit of that purchase, and anything which deprived them of their profits was an actionable claim on their behalf.
    IV. There is no ground for the contention that the counter-claim does not arise out of the contract or transaction set forth in the complaint, or that it is not upon contract. It clearly grows out of the same matters which are the subject of the action as set forth in the complaint and out of nothing else. It is also upon contract for a breach of plaintiffs’ contract obligation.

      Hinrichs & Rudolph, attorneys, and F. W. Hinrichs of counsel, for respondents, argued :—

      I. The alleged counter-claim does not state facts sufficient to constitute a cause of action. The complaint sets forth—in brief—that plaintiffs, John Berenberg Gossler & Co. of Hamburg, and Schulz & Ruckgaber, of New York, for their common advantage are engaged in business. In February last they opened a credit for defendants, J. H. Lau & Co. of New York, to be availed of by Braun & Bloem, of Dusseldorf, Germany. Braun & Bloem are manufacturers of blasting caps, and sell goods to defendants. These are paid for by plaintiffs’ accepting and paying the manufacturers’ drafts accompanied by invoices and bills of lading. Defendants agreed to provide, previous to the maturity of said drafts, sufficient funds to meet the same, with a commission of one per cent. Furthermore, all goods shipped, and the proceeds thereof, the bills of lading and the marine insurance (which defendants expressly agreed to secure), were pledged with plaintiffs as collateral security, with power to dispose of them at their discretion. The defendants finally expressly guaranteed that any bills of lading and invoices accompanying drafts would be genuine and that they would represent actual shipments. Braun & Bloem made a shipment, drew a draft for some marks—13,000—which was accompanied by an invoice of blasting caps and a bill of lading, and plaintiffs paid the draft. The caps were in fact shipped but lost at sea. Defendants refused to cover plaintiffs for the draft paid. A tender of the shipping documents and a demand were made before action begun.
    II. The main defence is (putting it in its strongest light for defendants) that the bill of lading purported to show that the goods were shipped on deck, and that the insurance company by reason of the “form” of the bill of lading “ claimed ” that it was not liable to pay the loss. Defendants being met with this “claim” of the insurance company, refuse to pay plaintiffs for their advances. Defendants also claim that according to the “true intent and meaning” of the agreement with plaintiffs, plaintiffs were not authorized to pay any drafts accompanied by bills of lading qualified in any way. The answer does not show that the goods were in fact shipped on deck, or allege that the insurance company is not liable to pay for them if so shipped, or set forth facts showing such non-liability, or allege that it was plaintiff’s duty to attend to the shipment of the goods and see to it that they were not shipped on deck, or that, if they were shipped on deck, the loss was due to that fact. It does claim that plaintiffs were negligent in receiving a bill of lading which was not regular or “ usual,” whatever that may mean. The answer does not, except by inference, allege that the insurance company, by reason of the goods being shipped on deck, “claims” that it is not liable. The whole trouble seems to be that the bill of lading “ states ” that the goods were on deck.
    III. The answer also sets up an alleged counterclaim, and asks for damages amounting to $2,108.64 and interest. These damages are for the amount of alleged profits which defendants claim that they would have earned on the sale of the goods had they not been lost, or if lost, that they would have received from the insurance company in addition to the cost of the goods. A most extraordinary claim. There is nothing to show that an insurance company would insure speculative profits, amounting to two-thirds of the original cost, or for any amount. There is no allegation' any where, except thus inferentially, that the goods were, in fact, shipped on deck. The allegations of the counter-claim then continue that plaintiffs wrongfully accepted a draft drawn upon them accompanied by such qualified bill of lading, and negligently omitted to notify defendants of the manner in which said goods were shipped. It is,not alleged that plaintiffs agreed so to notify defendants, and no facts are shown raising a presumption of a duty to do so. Defendants then claim that had they been so notified they might have had the value of the goods and their prospective profits covered by insurance on deck at shippers’ risk.
    IV. Under the contract the ■ value of the goods, if received from the company, would clearly have gone to plaintiffs to cover them for their advances. Furthermore, defendants cannot recover the value upon any theory, as they have failed to pay for them, nor can they for a like reason recover the difference between the market and the contract prices. The defendants are, therefore, driven to build a counterclaim ■ on alleged “ profits.” These are purely speculative. The allegation of the answer is “ that if the goods had arrived in the port of New York and (sic) in due course the defendants would have realized thereon a large profit in the sale thereof, to wit: about the sum of $2,108.64 and interest from June 23, 1890.”
    V. Even if the allegations of the counter-claim are not defective in the above specified particulars, defendants cannot recover for prospective and speculative “ profits.” And this is all that they seek to recover. Such “ profits ” were not within the contemplation of the parties even if the plaintiffs are at fault and debarred from recovering for their advances. If plaintiffs had been directly guilty of the loss of the goods by a negligent act (a much stronger case than that presented here), only the value of the goods could ordinarily be recovered. There was nothing to prevent defendants’ going into the market to buy .other goods as soon as they heard of the loss. This they- did not do. Had they been able to buy the goods at the same price as contracted for, no damage would have "resulted. “ The damages for which a party may recover for a breach of contract are such as ordinarily and naturally flow from the non performance. They must be proximate and certain, or capable of certain ascertainment, and not remote, speculative or contingent.. It is presumed that the parties contemplate the usual and natural consequences of a breach when the contract is made ; and if the contract is made with reference to special circumstances, fixing or affecting the amount of damages, such special circumstances are regarded within the contemplation of the parties, and damages may be assessed accordingly.” Booth v. Spuyten D. R. M. Co., 60 N. Y. 492.
   By the Court.—McAdam, J.

The complaint sets forth that plaintiffs John Berenberg Gossler & Co., of Hamburg and Schulz & Ruckgaber of New York, for their common advantage, are engaged in business. That in February, 1890, they opened a credit for defendants, J. H. Lau & Co., of New York, to be availed of by Braun & Bloem, of Dusseldorf, Germany. Braun & Bloem are manufacturers of blasting caps, and sell goods to defendants. These are paid for by plaintiffs’ accepting and paying the manufacturers’ drafts accompanied by invoices and bills of lading. Defendants agreed to provide, previous to the maturity of said drafts, sufficient funds to meet the same, with a commission of one per cent.

Furthermore, all goods shipped, and the proceeds thereof, the bills of lading and the marine insurance (which defendants expressly agreed to secure) were pledged with plaintiffs as collateral security, with power to dispose of them at their discretion.

The defendants finally expressly guaranteed that any bills of lading and invoices accompanying drafts would be genuine and that they would represent actual shipments.

Braun & Bloem made a shipment, drew a draft for some marks—13,000—which was accompanied by an invoice of blasting caps and a bill of lading, and plaintiffs paid the draft. The caps were in fact shipped but lost at sea. Defendants refused to reimburse plaintiffs for the draft paid. A tender of the shipping documents and a demand were made before action begun.

The counter-claim pleaded, aided by the previous allegations of the answer to which it refers, alleges in substance : (1) That the drafts or bills to be drawn in pursuance of the credit were to be accompanied by the usual bill of lading showing the shipment of such merchandise to the amount drawn upon such credits. (2) That, according to the tenor and true intent and meaning of the agreement, the plaintiffs were not required to, and were not authorized to, accept any draft or bill of exchange on account of the defendants, or under said credit, except such bills as should be accompanied by an invoice and the usual and ordinary bill of lading, showing the shipment of the merchandise for the purchase price of which the bill of exchange was given, in the usual and ordinary manner, and without any qualification as to the mode of shipment, and without any limit of the usual liability of carriers -under bills of lading. (3) That, for several years prior to the opening of the credit referred to, the defendants had received numerous similar credits which had been used for the purchase of blasting caps from Braun & Bloem, which had been invariably shipped to defendants by a clean and unqualified bill of lading, which, in every case, accompanied the drafts which were accepted in pursuance of said letter of credit, and plaintiffs well knew that Braun & Bloem had no right or authority to receive for any shipment of blasting caps, any bill of lading stating the shipment to be made on deck or at shippers’ risk. (4) That on the 10th of April. 1890, defendants purchased of Braun & Bloem 40 cases of blasting caps to be shipped from Hamburg to the port of New York, for the price of 13,300 marks. (5) That Braun & Bloem, wrongfully and in violation of their duty, received and accepted for the same, a bill of lading, which stated, in substance, that the caps were to be carried on deck at shippers’ risk; whereas they should have been shipped under an ordinary clean and unqualified bill of lading; but that Braun & Bloem drew the bill of exchange referred to in the complaint, and attached thereto the said qualified bill of lading so received by them. (6) That plaintiffs carelessly and negligently, and contrary to the' true intent and meaning of their agreement, and in violation of their duty, accepted the said bill of exchange with the said qualified bill of lading attached thereto without lawful right or authority so to do. (7) That insurance upon said blasting caps was duly applied for by the defendants, and the same was written as a risk under their open policy, according to their agreement with plaintiffs. (8) That the insurance company which issued the policy now claims that, by reason of the manner in which the same was shipped, the policy did not attach, and that no liability was incurred by the insurance company, and, on that ground, refuses payment under the policy. That defendants had no knowledge or notice prior to the loss of the caps that the same were shipped on deck or in any other than the usual way and by the usual bill of lading. (9) That plaintiffs wrongfully accepted said bill of lading and bill of exchange and carelessly and negligently omitted to notify the defendants of the manner in which the goods were shipped, so that the defendants might have had the value thereof and their profits in the purchase of the same covered by insurance upon the goods as on deck at shippers’ risk. (10) That if the goods had arrived in the port of New York in due course the defendants would have realized thereon a large profit, to wit, §2,108.64. (11) That by reason of the manner in which they were shipped the insurance has been lost, and the defendants have lost their said profits. (12) The defendants demand judgment for the dismissal of the complaint and for the above mentioned sum against the plaintiffs.

The demurrer was upon three grounds: 1st, That the counter-claim does not state facts sufficient to constitute a cause of action. 2d. That it is not a counterclaim of the character mentioned in section 501 of the Code of Civil Procedure, in that it is not a cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of plaintiffs’ claim, or connected with the subject of the action. 3d. That the counter-claim is not of the character specified in said section 501, in that it does not appear to be an action on contract other than that set forth in the complaint and existing at the commencement of the action.

The demurrer was sustained at special term. The appeal is from the interlocutory judgment entered thereon.

Construing all the allegations of the answer as favorably to the defendants as the rules permit, the answer merely shows that the plaintiffs should not have advanced their money on the draft without first obtaining clean bills of lading, without any qualification whatever. The plaintiffs were not the shippers of the goods, did not obtain the bills of lading from the carrier, but from Braun & Bloem, from whom the defendants received the goods. The plaintiffs were not the agents of the defendants, in the sense that imposed on them the duty of seeing to the manner of shipment of the goods or to the phraseology of the bills of lading, or of communicating to the defendants the mode of shipment or contents of said bills of lading.

All these and such like things were matter of concern between Braun & Bloem, on the one hand, and the defendants on the other. There being no duty, and consequently no breach, the defendants could not have suffered any damage from any act or omission of the plaintiffs in the premises, and hence the counter-claim alleged no cause of action against them. For these reasons, and without considering the.other objections urged to the defendants’ answer on the ground that it contains conclusions instead of facts, the demurrer was properly sustained, and the interlocutory judgment entered thereon in favor of the plaintiffs must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    JOHN BERENBERG GOSSLER, et al., Respondents v. JACOB H. LAU, et al., Appellants.

      Answer, matters irrelevant and redundant to, stricken out on motion.

    The court reviews facts and points stated in the case as reported ante, p. 354, and held that, under the circumstances, the familiar rule, that where one of two innoeent persons must suffer by the wrong of a third, the loss must fall upon him who gave the credit or imposed the confidence, may be invoked. The effort of the defendents to spell out a duty and breach on the part of plaintiffs, by the use in their answer of conclusions and inferences without support of facts, has failed to make that duty or breach clear. The matters stricken out were irrelevant and redundant, and properly stricken out.
    Before Sedgwick, Ch. J., Freedman and McAdam, JJ.

      Decided May 4, 1891.
    Appeal by defendants from order made at special term, striking out portions of answer.

      Wing, Hill & Shoudy, attorneys, and J. A. Shoudy of counsel, for appellants.

      Hinrichs & Rudolph, and F. W. Hinrichs of counsel, for respondents.
   By the Court.—McAdam, J.

Without going over the facts which have been fully stated in the opinion filed on sustaining the interlocutory judgment ente red-on the demurrer interposed by- the plaintiffs to the counterclaim of the . defendants, we have failed -to discover any abuse of authority by the court below in striking out portions of the defendants’ answer. As we said, in disposing of the other appeal, the plaintiffs were not the shippers of the goods, did not obtain the bills of lading from the carrier, but from Braun & Bloem, from whom the defendants received the goods. The plaintiffs were not the agents of the defendants, in the sense that imposed on them the duty of seeing to the manner of shipment of the goods or to the phraseology of the bills of lading or of communicating to the defendants the mode of shipment or contents of said bills of lading. .There are no facts allegéd from which any such duty may be implied. The drafts of Braun & Bloem were honored by the plaintiffs, upon receiving bills of lading for shipments actually made by Braun & Bloem. There is no allegation that the bills of lading did not truthfully represent the facts as they were. There was nothing upon the bills of lading to apprise the plaintiffs that they were improper in form or different than Braun & Bloem or the defendants intended. The plaintiffs were justified in honoring the drafts, and the defendants should make the amount paid good. The subsequent loss of the goods at sea cannot be visited upon the plaintiffs who are innocent of any misconduct. Braun & Bloem are the guilty persons, if any wrong was done to the defendants, and if they have any remedy it is seemingly against them. The defendants relied on Braun & Bloem for ' the manner of shipment, and the obtaining of proper bills of lading. Braun & Bloem were selected by the defendants for their integrity and ability, and, if they were agents in the transaction, they were the representatives of the defendants, and, in contemplation of law, what they did the defendants did.

Under these circumstances, the familiar rule, that where one of two innocent persons must suffer by the wrong of a third, the loss must fall upon him who gave the credit or imposed the confidence, may be invoked. The effort by the defendants to spell out a duty and breach on the part of the plaintiffs, by the use in their answer of conclusions and inferences without support from facts, has failed to make that duty or breach clear.

The matters stricken out were irrelevant and redundant, were properly stricken out, and the order striking them out must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.