Bedell v. Kennedy

and at all times be construed into a covenant running with’, the land.” It was further stipulated that when the occasion of mutual use should arise “the value of said wall to be appraised and determined by two practical masons, one-chosen by each of the parties, and they, if necessary, to-choose another, whose decision shall be final.” Under this arrangement Boggs constructed the party-wall. Lilienthal thereafter conveyed his land to Mix, who conveyed to Mrs. Lilienthal, and she later, by a deed in which her husband, joined, conveyed to Oppenheimer and Metzger. In neither of these deeds was there contained any reference or allusion to the party-wall agreement.

Oppenheimer and Metzger conveyed to Margaret Crawford, by a deed which specified that it was “subject to” the-party-wall agreement, describing it by its date and place of record and the parties to it. Mrs. Crawford then conveyed to Mrs. Pupke, subject to the same agreement, the grantee-covenanting to perform its terms, which in any manner were binding on the grantor. By a similar deed containing a similar covenant, Mrs. Pupke conveyed to the defendant. In November, 1883, Boggs assigned to the plaintiff all his rights under the party-wall agreement. Before that transfer, and in the summer of 1881, the defendant began to build upon the lot he had purchased. The plaintiff, who was then the agent of Boggs, sent a note to the defendant, calling upon him to fulfill the party-wall agreement, and later had an interview with him in which the latter selected an appraiser. Boggs also selected one, and a few days after the two met and compared their measurements and figures, and, disagreeing at first, finally awarded $1,290 as the full value of the wall. Within a fortnight the defendant himself called and complained that the figures were too high, and offered $500, which was accepted, on condition of its. payment by the tenth of the ensuing October. The defendant did not pay and the plaintiff sued to recover one-half of the award. Judgment went in his favor, which was affirmed at the general term, one member of the court dissenting.

The appellant’s counsel concedes in his brief that “persons chosen pursuant to an agreement to act as appraisers are to be considered in the same light, and subject to the same-, rules, as arbitrators; and their appraisement has the same force and effect as an award.” At least that was its character under the facts of this case. The defendant purchased, with notice on the face of his deed that a party-wall agreement existed which was claimed or supposed to be binding on his grantor, and the obligations of which he was required to assume. That agreement^ was on record; open to his observation; in the line of his chain of title; and we are justified in assuming that he knew its terms, and those of the subsequent conveyances down to his own. He knew, also, when he went -into possession that the party-wall existed as a fact, standing one-half on the adjoining land

and one-half upon his own land. Thus cognizant of the situation, he was notified to fulfill the terms of the_ agreement by joining in the stipulated arbitration. At this point it became his duty to admit or deny the obligation of the party-wall agreement, if he acted at all upon the subject. He was at liberty to repudiate any liability and refuse to arbitrate, and leave the other party to his remedy, if any, in the courts. But he was not at liberty both to admit and deny, and so mislead his adversary to his injury. What he did was to concede the obligation and join in the arbitration. The adjoining owner had a right to assume, and did assume, that the only matter in controversy was the amount to be paid depending upon the value of the wall, and so appointed his own arbitrator for that purpose. He was thus led to refrain from prosecuting the defendant in the courts and to incur the expense of an arbitrator, and consent to that mode and measure of recovery as final and conclusive on both parties. The arbitrators made their award. It was sufficiently definite and certain, for it fixed the value of the wall, one-half of which, under the submission, the defend - ant was to pay. That award, therefore, bound him. He cannot now go back of it and say that it was an idle and useless ceremony, and leave the other party to regain, if he can, the time lost, and bear the fruitless expenses incurred. How that he is sued upon the award he cannot be heard to say that he ought not to have made the submission, and did not mean to admit by it his liability for one-half of the wall. He has taken his chances under the arbitration, availing himself of all its possibilities in Ms favor. After it was made and came to his knowledge, he complained only that the figures were too high; not questioning the authority of the appraisers; not objecting that he ought to have been heard before them, which it is evident was never contemplated (Wiberly v. Matthews, 91 N. Y., 648 ); but complaining of the amount and offering to pay a less sum, which, although Ms offer was accepted conditionally upon a reasonably prompt payment, he now repudiates. We are of the opinion, upon the facts, that the arbitration was binding and the award good. We think its force is not confined to a mere abstract inquiry as to the value of the wall, but that involved in it was a conceded liability to pay the amount so ascertained upon which the arbitration proceeded and the appraisal was founded. It would be quite unreasonable to say upon the proofs, that the parties contemplated a division of the controversy into two parts, one to be disposed of by arbitration and the other by the courts, and that the one which was totally immaterial until the other was determined should be tried first. Without considering the nature of the covenant, we think the recovery may stand upon the award.

The judgment should be affirmed, with costs.

All concur.