Opinion
April 11, 1930.
Appeal from Supreme Court of Queens County.
Harris Jay Griston [ Alexander Bicks with him on the brief], for the appellant.
Abraham J. Herrick [ Samuel R. Heller with him on the brief], for the respondent.
Present — LAZANSKY, P.J., RICH, KAPPER, HAGARTY and SCUDDER, JJ.
We are of opinion that the agreement that the owners of parcels "A" and "B" were to maintain in repair "the sewer laid across the land owned by each respectively" was not a covenant which ran with the land so as to permit of its enforcement against the plaintiff by any other owner. The fact that the agreement provided that the covenant was to run with the land did not take the case out of the category of being an affirmative or positive covenant unenforcible under the authority of Miller v. Clary ( 210 N.Y. 127). The case of Lawrence Park Realty Co. v. Crichton ( 218 App. Div. 374) involved the maintenance of a private park including its roads and walks, and a contribution for each dweller within the private park who, either personally or through his ancestor, covenanted to contribute ratably to the reasonable cost of maintenance and upkeep, and was one of mutual benefit to all owners of the park and constituted, in our opinion, an exception to the rule laid down in Miller v. Clary ( supra). The appellant is correct in arguing that some of his requests to find should not have been refused, and those which are consistent with the judgment may be found without prejudice.
The judgment should be affirmed, with costs.
Judgment unanimously affirmed, with costs. Settle order on notice.