Bleakley v. Sullivan — 42 N.Y. St. Rep. 814

Majority

p. 814

Rosalie A. Bleakley, Resp’t, v. Timothy J. Sullivan, Impl’d, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

Lease—Covenant in favor of lessor.

A lease of. a brickyard gave the lessees the right to take material from the lessor’s premises, and provided that they should at all times keep on the premises sufficient brick to pay one quarter's rent. Held, that such covenant was valid, and that the lessees could not evade it by mingling such brick with others and mortgaging the same; that the lessor could take out of the confused goods an amount equal to her demand.

Appeal from judgment in favor of plaintiff, entered on decision of the court. r

Action to restrain defendant and others from removing certain brick from a brickyard.

Cyrus W. Horton (Calvin Frost and Franlclin Couch, of counsel), for app’lt; David W. Travis, for resp’t.

The plaintiff executed a lease to McGuire Griswold of a brickyard - at Yerplank’s Point in Westchester county. Lessees took in another party and formed a corporation under the name of McGuire & Co., for the manufacture and sale-of brick. The lease granted the right to enter upon the plaintiff’s property and take the material for the manufacture of the brick. The lease provided that at all times on and after the first quarter’s rent became due the lessees should have and keep upon the yard good hard brick enough to pay one quarter’s rent. In case of default in payment of rent the lessor was authorized to take the brick and sell the same and discharge - the rent due with expense of sale.

There is rent due and the lessees have mortgaged to Sullivan, one of defendants, all the brick in the yard. The action is brought to compel the execution of the covenants in the lease so far as respects brick sufficient to pay the undue rent.1 The lease-was not a chattel mortgage. It did not convey property with a defeasance and it operated on no specific property. The landlord

p. 815

.never parted with the title and her claim rests upon her personal fight thereon.

She owned the yard and the materials with which the Brick was made. She gave the right to the brickmakers to take her ■property and make it into brick, but no sale could be made below -an amount sufficient to pay her rent The lessees never had a right to sell and could not sell to Sullivan without observing this covenant. A mortgagor can give no title greater than he has. The lessor was always in possession of the brick reserved; this .possession followed her title to the land and to the product of the land so far as such product was reserved for her own safety until the covenant of payment was fulfilled. It was the fault of the lessees if this reserved amount of brick was mixed with other brick, and when a confusion of goods is thus made the lessee gets no benefit

The landlord can take out of the confused goods an amount equal to his demand. The agreement was good in law, .was beneficial to the tenants and they could not evade it in the manner shown by the case.

The judgment should be affirmed, with costs.

■ Pratt, J., concurs; Dykman, J., not sitting.