Clement v. Burtis — 31 N.Y. St. Rep. 902

Majority

p. 902

Amelia P. Clement, Resp’t, v. Nathaniel W. Burtis et al., App’lts.

(Court of Appeals,

Filed June 24, 1890.)

Headnote

Deed—Condition subsequent—Covenant.

A clause in a deed that “ upon the express condition, nevertheless, that the said party of the second part, his heirs or assigns, shall not at any time or times hereafter erect, place or permit, or suffer to he erected, placed or put or remain in or upon the said premises or any part or parcel thereof, any building or erection, or carry on any business which shall or may cause or become a nuisance to others owning lands or contiguous thereto,” does not create a condition subsequent, hut is a covenant running with the land.

Appeal from order of the supreme court, general term, first department, affirming order directing Edward J. O’Flynn to complete a purchase made on his bid at a foreclosure sale.

B. C. Conrady, for app’lts; II. O. M. Ingraham, for resp’t.

Edward J. O’Flynn became the purchaser on a foreclosure sale of certain real estate, and subsequently refused to complete his purchase, on the ground, as stated by ¡'him, that “ the title to a portion of said lands is derived through a deed of conveyance bearing date December 24, 1851, madel by Richard ■ L. Crook and his wife to Samuel Baldwin Chapman, and recorded in the Kings county register’s office, in liber 267 of Conveyances, at page 171, January 9, 1852, and that such lands wore conveyed by said deed upon a condition subsequent therein expressed.”

p. 903

The habendum in the deed from Crook and wife contains the following clause : “ Upon the express condition, nevertheless, that the said party of the second part, his heirs or assigns, shall not at any time or times hereafter erect, place or permit, or suffer to be erected, placed or put, or remain in or upon the said premises, or any part or parcel thereof, any building or erection, or carry on any business which shall, or may cause or become a nuisance to others owning lands, or contiguous thereto.”

The claim of the purchaser is that this clause in the deed creates a condition subsequent, and that there is, therefore, such a defect in the title that he should not be compelled to complete his purchase.

We are of opinion that this clause does not create a condition subsequent, but that it is a covenant running with the land. It is unnecessary for us now to give our reasons for so holding, as they are found in our recent decisions in the cases of Avery v. The New York Central & Hudson River R. R. Co., 106 N. Y., 142 ; 8 N. Y. State Rep., 612; and Post v. Weil, 115 N. Y., 361 ; 26 N. Y. State Rep., 131. We do not understand that the purchaser makes any complaint of this clause in the deed, provided it be simply a covenant running with the land. In that event it could not be harmful, because it would not bind the owner of the land further than he would be bound by the law in the absence of any covenant.

We are, therefore, of opinion that the order below should be affirmed, with costs.

All concur, except Andrews, J., absent.