Coffin v. Atkins — 38 N.Y. St. Rep. 354

Majority

p. 354

Euphemia S. Coffin, App’lt, v. Elizabeth Jane Atkins, Impl’d, Resp’t.

(New York Superior Court, General Term,

Filed April 6, 1891.)

Headnote

Covenant—To heat building.

A covenant in a deed that the grantee will supply steam for heating and the hot water for adjoining buildings, “as now connected,” refers to the time of delivery of the deed, and a subsequent grantee of the premises cannot recover contribution for the' expense of furnishing the steam as provided in said covenant without showing that the supply to the premises in question was as they were connected at the time of delivery of the deed.

Appeal from a judgment in favor of defendant Atkins, dismissing the complaint

Action for an accounting between plaintiff and defendant Atkins and others in relation to the expenses incurred by plaintiff in supplying steam and hot water to defendants' houses. The common source of title conveyed to plaintiff’s grantor a house in the cellar of which was a boiler and steam heating apparatus con

p. 355

nected with the adjoining houses. The deed contained a covenant on the part of the grantee to furnish “ 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 thereof should be paid by dividing the same among the buildings using the steam and hot water.

Edmund Coffin, Jr., for app’lt; Daly, Hoyt & Mason, for resp’t.

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 she failed to do. The complaint was, therefore, properly dismissed. The judgment should be affirmed.

Sedgwick, Ch. J., concurs in result.