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Moxley v. New Jersey & New York Railroad

49 N.Y. St. Rep. 363 Court N.Y. Gen. Term Decision date 1892-12-12 English

Delivered by Barnard, P. J.

Contents

Majority

p. 363
Dennis Moxley, Resp’t, v. The New Jersey & New York Railroad Co., App’lt.
(Supreme Court, General Term, Second Department,
Filed December 12, 1892 )

Headnote

Covenants—To fence—Contract for sale of land.
A covenant by a railroad company in a contract for the purchase of land, that it will build and maintain a fence on each side of its track, is one that runs with the land, and a grantee of the vendor may maintain an action for a breach thereof.
Appeal from judgment for the recovery by plaintiff of $250 damages, and that on defendant’s erecting fences on both sides of its road and paying the money judgment plaintiff execute a deed of the premises in question to defendant.
Action of ejectment. Defendant asked specific performance of a contract for sale of the land executed by plaintiff’s grantor.
De Forest & Weeks (F. L. Hall, of counsel), for app’lt; W. J. Groo, for resp’t.

The case of Helmlce against the defendant is similar, in principle, with this case, and would be covered by the decision in that case except that the person who gave the consent to the railroad, one Westervelt, died, and his lands were sold. The plaintiff bought the land in question with full knowledge that the defendant was in possession. The covenant runs with the land. It is not only to build, but to maintain th * fence on each side of the track that is secured by the contrae j The land under the road of the defendant was sold to plaint I iff, of course, subject to the performance of the original agreement to sell. The covenant to maintain a fence, even if it needs a new one, is an obligation which the defendant owes to Moxley and this obligation has been broken, causing a large loss to the plaintiff since he acquired title in 1885. The plaintiff may, therefore, maintain the action, although he purchased the land in 1885. Blain v. Taylor, 19 Abb., 228 ; chap. 282, Laws of 1854, § 9.

Judgment affirmed, with costs.

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