Scott v. . McMillan

Danforth, J. 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 ivas 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 oí 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 ivas provided that one-half of the wall should be paid for by him. This ivas 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 shell 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 Avhatevcr 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 Avell settled that such a stipulation imposes no personal liability on the grantee, and that in the absence of an express *145 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.