Coffin v. Atkins — 13 N.Y.S. 886

Majority

p. 886

Coffin v. Atkins et al.

(Superior Court of New York City, General Term.

April 6, 1891.)

Headnote

Covenant to Heat Buildings.

A deed contained a covenant by the grantee to “supply the steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed, as now connected, ” so long as the expenses of doing so should be paid for by dividing them equally among the buildings using said steam and hot water. Held, that a subsequent grantee of the premises conveyed could not recover the expenses of supplying st'eam and hot water to such buildings, without showing that such supply t'a the buildings was as they were connected at the time of the delivery of the deed.

Appeal from special term.

Action by Euphemia S. Coffin against Elizabeth Jane Atkins and others, for an accounting of expenses incurred by plaintiff in supplying steam and hot water to defendants’ houses. It appeared that plaintiff and defendants were owners of adjoining houses, all of which were formerly owned by the same person, and had been constructed with boilers and steam-heating appa-

p. 887

ratus in the cellar of one of them, with pipes and connections with the two next adjoining on the east; that such former owner conveyed the house, in which were the boiler and heating apparatus, by a deed containing a covenant by the grantee, for herself, and her heirs and assigns, that she and they would keep the boilers and connections in the cellar, and would “supply the steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed, as now connected, so long as the expense of supplying said steam and hot water, and of repairing said boilers and steam and hot-water fittings and connections, which are now in the cellars of said buildings, shall be paid for by dividing said expenses equally among the buildings using said steam and hot water. ” Subsequently the title to the premises conveyed by this deed became vested in plaintiff. All the defendants answered the complaint, but only the defendant Atkins appeared at the trial. Plaintiff appeals from a judgment dismissing the complaint as to the defendant Atkins, rendered on trial by the court without a jury.

Argued before Sedgwick, O. J., and Truax and Dugro, JJ.

Edmund Coffin, Jr., for appellant. Daly, Hoyt & Mason, for Atkins, respondent.

This is an appeal from a judgment. The covenant in the deed of July, 1884, reads that the plaintiff will “supply the steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed, as now connected. ” The word “now” refers to the time of the delivery of the deed. To establish his case it became necessary for the plaintiff to show, among other things, that the supply of the steam and hot water to the premises in question was as they were connected at the time of the delivery of the deed. This he failed to do. The complaint was therefore properly dismissed. The judgment should be affirmed.

Sedgwick, 0. J., concurs in the result.