Opinion
May, 1905.
George S. Ingraham for plaintiff.
Henry C.M. Ingraham for defendant.
The lease was assigned to the plaintiff during the term, and the defendant became the owner of the demised premises during the term as devisee under the will of the lessor, and collected the rent. As the words of the agreement that the lessor shall pay at the end of the term for the buildings to be erected by the lessees during the term do not name the heirs and assigns of the covenantor, it is not a covenant running with the land, and therefore binding on the defendant as devisee. When the covenant is of a thing not in esse, as is the case here, i.e., to erect buildings on the demised premises, there is nothing for it to become appurtenant to, and heirs or assigns are not bound unless by express words. The covenant here was only the personal covenant of the lessor, and binds her executor only (Thompson v. Rose, 8 Cow. 266; Tallman v. Coffin, 4 N.Y. 134; Coffin v. Talman, 8 N.Y. 465 Countrymen v. Deck, 13 Abb. N.C. 105 note; N.Y. Dyeing Printing Est. v. De Westenberg, 46 Hun, 281). The case of Schoellkopf v. Coatsworth ( 166 N.Y. 77) is not in point. There the agreement was such that the tenancy could only be terminated by the lessors giving a notice of six months to the tenant and becoming thereby bound to pay for the buildings, and their heirs or grantees were of course in the same position. The giving of the notice made them liable for the buildings, for that was the alternative of the contract.
The demurrer is sustained.