Scott v. . McMillan , 76 N.Y. 141 ( 1879 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] I think the judgment should be affirmed. I am unable to distinguish this case from Cole v. Hughes (54 N.Y., 444), where, upon an agreement similar to the one above referred to, it was held that the covenant to contribute for the construction of a party-wall did not run with the land and was not enforceable against a grantee of premises, whose former owner had entered into the covenant "for himself his heirs or assigns." The learned counsel for the appellant however claims that in deciding Cole v. Hughes the court overlooked the earlier case of Brown v.Pentz (1 Abb. Ct. App. Dec., 227), and refused to follow it in the case of Brown v. McKee (57 N.Y., 684) afterwards decided. It will be seen however, first, that the former case was decided by an equally divided court and the judgment below affirmed under the statute; and second, that by the deed under which the defendant then held, it was provided that one-half of the wallshould be paid for by him. This was a promise which the grantor had an undoubted right to make, and to its performance the grantee became liable when he accepted the deed, but such promise is not to be found in the conveyance under which the respondent in this case makes title. In the latter case (Brown v. McKee) the plaintiff's rights were not considered, the court holding that whatever they might be, no cause of action had accrued.

In the case before us the defendant accepted a deed of the McMillan lot, "subject to the aforesaid agreement," but it is well settled that such a stipulation imposes no personal liability on the grantee, and that in the absence of an express agreement to assume, or pay, or perform, no agreement will be implied and no action involving a personal liability can be maintained against him.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.