Wilkinson v. Pettit

By the Court, Ingalls, J. By the lease the premises were demised to John Walsh, Phineas S. Pettit and Aaron G. Anthony, composing the firm of Walsh, Pettit & Co., and to their executors, administrators and assigns, for the term of three years, with the privilege of an extension of the lease two years, at the election of the lessees. The provision contained in the lease is as follows: “ To continue this lease in force for the term of two years after its expiration, as above provided, upon condition that they shall signify such, their election, by giving to the party of the first part a written notice to that effect, three months before the expiration of their first term.” The firm of Walsh, Pettit & Go. was dissolved before the expiration of the three years; and their interest in the lease was transferred to Pettit and Tap-pan, Pettit being one of the lessees named in the lease. And such transfer was made by and with the consent of all of the lessees. The language used is comprehensive; “Do hereby sell,- assign, transfer and set over unto Phineas S. Pettit and Shepard Tappan, of the same place, the annexed lease and all our right, title and interest therein.” The plaintiff consented, in writing, that Walsh, Pettit and Anthony, might underlet to Pettit and Tappan, he holding all of the original lessees liable for the rent; and he received the rent up to the 1st May, 1865. If the original lessees chose to accept such consent upon the condition imposed, and thereby continue liable for the rent, in the character of sureties of Pettit ánd Tappan, certainly there could be no legal objection to such an arrangement. No principle of law was thereby [233] violated, and the agreement • was voluntary. (Dexter v. Bevins, 42 Barb. 575.) It seems to' have been the intention of the parties, that Pettit and Tappan should acquire all the right which Walsh, Pettit & Co. possessed under the lease. The provision relative to the extension of the term for two years, is in effect a covenant running with the land, and as such enured to the benefit of the defendants, under the assignment. Ho particular words are essential to constitute such a covenant, and it is sufficient if, from the whole instrument, it appears that such was the apparent intention of the parties. (Tracy v. Albany Ex. Co., 7 N. Y. Rep. 474.) In Vernon v. Smith, (5 Barn. & Ald. 10,) Best, J. defines a covenant which goes with the estate, as follows : “A covenant in a lease, which the covenantee can not, after his assignment, take advantage of, and which is beneficial to the assignee as such, will go with the estate assigned.” (Id. 11.) “By the term collateral covenant, and which does not pass to the assignee, are meant such as are beneficial to the lessor, without regard to his continuing the owner of the estate.” In Demarest v. Willard, (8 Cowen, 210,) Judge Savage remarks: “ That the assignee can take advantage of all covenants which run with the land, is perfectly settled, and that on a covenant which runs and rests with the land, an action lies for or against the assignee, at the common law, although the assignees are not named in the covenant.” (See also Piggot v. Mason, 1 Paige, 412; Hyde v. Skinner, 2 P. Will. 197.) The resolution in Spencer’s Oase declares, “ When the covenant extends to a thing in esse parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed, and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words ; but where the covenant [234] extends to a thing which is not in being at the time of the demise made, it can not be appurtenant, or annexed to the thing which hath no being,” &c. (1 Smith’s Leading Oases, p. 22.) In Washburn on Beal Property, (vol. 1, p. 331,) the .author remarks: “ While, as has been said, there are many covenants which run with the land, binding assignees as well as operating in. their favor, there is a distinction between such as bind assignees without being named, and such as require them to he named, in order to charge them with their performance. And the distinction seems to be, whether the subject matter of the covenant is in esse at the time of the demise or not. If it is, the covenant binds the assignee, whether named or not.” (See also Taylor’s Landlord and Tenant, 127,128, 157.) It is obvious that the covenant in question had direct reference,. and extended to the land demised, and created a beneficial interest therein, in favor of the. lessees; and that after the assignment, the qriginal lessees, as covenantees, could not take advantage, of the covenant, the same being beneficial to the assignees, hlor can the covenant be regarded collateral, within the definition of such a covenant above given. I am, therefore, of opinion that the covenant in question ran with the land, and as such enured to the benefit of the defendants as assignees, and is obligatory upon the plaintiff, and must be enforced in favor of the defendants. This provision extending the term, constituted a part of the consideration of the lease, and the transfer was made with the knowledge and consent of all parties ■ interested, and Pettit was one of the original lessees. (Rosevelt v. Hopkins, 33 N. Y. Rep. 81.) There is no evidence showing that the defendants have failed to observe the obligations imposed upon them by accepting such assignment, or that the plaintiff has been prejudiced by 'such assignment. I am therefore unable to discover upon, what legal or equitable ground the plaintiff should be [235] allowed to prevail in this action. The cause was, in my judgment, properly disposed of at the circuit, and a new trial must be denied, with costs. [Albany General Term, May 7, 1866. Miller, Ingalls and Hogeboom, Justices.] ♦