Day v. Swackhamer

By the Court, Brady, J. The defendant hired from A.. & S. H. Campbell, on the 28th March, 1854, by agreement under seal, the second floor, including a small room at the head of the stairs, of the house known as 128 Chambers-street, in the city of New-York, with a privilege in the yard—the Campbells agreeing that the walls in the front and back rooms should have one coat of paint, and that the back windows should be straightened; and the defendant agreeing that he would make all other repairs or alterations at his own expense. The Campbells assigned the defendant’s agreement to one George Stevenson, by assignment bearing date Sept. 16, 1854, and Stevenson assigned it to the plaintiff by assignment bearing date Dec. 2, 1856. The action was brought to recover for one quarter’s rent of the premises due [6] 1st May, 1857. On the trial, the defendant sought to establish a defence by showing breaches of agreements made when the Campbells and Stevenson held the lease, but not resting in covenant or in writing, and of which the plaintiff had no notice; and promises by them to indemnify him for damages sustained in consequence thereof. The evidence of these facts was properly excluded by the court below. An assignee is bound by the covenants real annexed to the estate, and running with the land, (1 Rev. Stat. 747, §§ 23, 24, 25,) but his liability extends only to covenants broken while he remains possessed of the estate. Armstrong v. Wheeler, 9 Cow. R. 88; Taylor v. Shum, 1 B. & P. 21. He is not chargeable for a breach of covenant which happened previous to the assignment to him. Church Wardens of St. Saviours Southwark v. Smith, Burr. 1271; Grescot v. Green, 1 Salk. 199. The only covenants which appear in the agreement sued on, affecting the assignee, aside from the demise, are the agreements to paint, and the agreement to straighten the windows. The defendant covenanted to make all other repairs and alterations at his own expense. There is evidence on both sides conflicting in its character as to the performance of the covenant to straighten the windows, and the painting seems to have been done. On this branch of the case, therefore, there is nothing in the return which would warrant the interference of this court. The defendant must seek redress against the Campbells and Stevenson on their promises to indemnify, which in no way bind the plaintiff. There is, however, an offer to prove a fact, which, if it had been properly presented, and an exception to the ruling of the justice excluding it properly taken, would avail the defendant on this appeal. He offered to show that, during the time he occupied the premises, he did not have the privilege in the yard granted by the demise, but it was coupled with an agreement between the Camp-bells and himself as to his allowance for damages sustained thereby, and the time when they should be deducted. From the offer thus made, it appears that the deprivation of the privilege in the [7] yard occurred during the time when the Campbells were his land lords, and not during the period that the plaintiff held the lease. It was therefore properly excluded by the justice. If the offer had been to show that the defendant had not had the privilege in the yard during the time which had elapsed from the assignment to the plaintiff, we cannot say but that the proof would have been admitted. The case shows no violation of any agreement by the plaintiff, or any offer to show any violation by him of any covenant or agreement he was bound to keep. Judgment affirmed.