Joseph Fallert Brewing Co. v. Blass

Rich, J.: The only question presented is whether the action can be maintained against these defendants. There is no claim that the money deposited ever came into their possession. The learned counsel for [55] appellant contends, however, that the covenant to return the money ran with the land, and defendants’ title was taken subject, to the agreement contained in the-lease. In this we think,he is mistaken. The covenant for the return of the money was a personal agreement between the original lessor and the lessee, and while an action might be maintained against the original- lessor to recover the differ-, ence between the amount deposited with her and the sum owing at the time the sub-lessee was dispossessed, the covenant to return was collateral. ■ (8 Abb. U. T. Cyc. Dig. 904.) In Vernon v. Smith (5 Barn. & Ald. 1) Best, J., says: “ By the terms collateral covenants, which do not pass to the assigned, are meant such as are beneficial to the lessor, without regard to his con- . tinuing the owner of the estate. This principle will reconcile all the cases.” In Vyvyan v. Arthur (1 Barn. & Cress. 410) the same learned judge says : “ The general principle is, that if the performance of the covenant be beneficial to the reversioner, in respect , of ■ ■ the lessor’s demand, and to. no other person,, his assignee m'ay gue upon it; but if it be beneficial to the lessor, without regard to his continuing owher of the estate, it is .a mere collateral covenant, upon which the assignee cannot sue.” . In Bally v. Wells (3 Wilson, 25) it is said: “ There must always be a privity between the plaintiff and defendant to make the defendant liable to an action of covenant ; the covenant must respect the thing granted or demised; ■ ■ when the thing to be done, or omitted to be done, concerns the lands or estate, that is the medium’which creates the privity between ■ the plaintiff and defendant.” We have recently held in Knutsen v. Cinque (113 App. Div. 677), a,n action to recover the' sum deposited by the tenant of a lessor who had sold and conveyed the property before the expiration of the lease, that the action was against the original lessor, and this was upon the theory that the covenant to refund was collateral and did not run with the land. The learned justice of the Municipal Court made a proper disposition of the case, and the judgment must be affirmed, with costs. Hi-rsohberg, P. J., Woodward, Jenks and Miller, JJ., concurred. Judgment of the Municipal Court affirmed, with costs. •