#### James C. Crawford, Appellant, *v.*Henry Krollpfeiffer, Respondent.

First Department,

December 20, 1907.

Beal property — easement — party wall — agreement to share expense not running with land.-

An agreement that the plaintiff build a wall) partly on his own land' and partly on the land of an adjoining owner, the latter or his assigns to be at liberty to úse said wall in the future as a party wall on payment of a stated sum to the plaintiff or his assigns, with a provision that the agreement is a covenant running with the land hut does not convey any part of the fee upon which the • wall is to be erected, while creating easements appurtenant to each lot, does not make an' obligation to pay running with the land.. Hence, the plaintiff having conveyed, cannot'hold the adjoining owner’s successor in title on the promise to pay, nor subject his lands to an equitable lien.

One who conveys lands cannot retain an easement appurtenant thereto, - for the-, latter passes to the grantee.

Appeal by the plaintiff, James C. Crawford, from a judgment of the Supreme Court in favpr of the defendant, entered in the office of the clerk of the county of New York on the 6th day of July, 1907, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

*Joseph*Fettretch, for the. appellant.

*Harold*Swain, for the respondent.

*849Laughlin, J.:

This is a suit in equity to have a lien declared in favor of the plaintiff and enforced against premises owned by the defendant for $500 on account of the expense of constructing a party wall. On the 28th day of February, 1899, the plaintiff owned a lot having a frontage of 20 feet on the northerly side of One Hundred and Eighteenth street, commencing 225 feet .westerly from the westerly line, of Lenox avenue, and one Francis Crawford owned the lot next easterly therefrom and of the same dimensions. On that day the owners of these lots entered into an agreement in writing, plaintiff being party of the first part, and Francis Crawford being party of the second part, which was duly recorded in the office of the-register of the county of Hew York, in and by which it was provided that the plaintiff should forthwith construct a party wall, the center line of which should be the line between the two lots. The dimensions of the wall were prescribed in the agreement. It was further provided that the entire cost-of construbting the wall should be borne by thé plaintiff or his assigns, and that “ the said party of the second pai’t hereto, or his assigns, shall be at liberty at any time hereafter to use the said wall for all the purposes of a party wall for any house which he or his assigns may erect on said land owned by the said party of the second part, upon payment by the said party of the second part, or his assigns, to the said party of the first part, his legal representatives or assigns, the sum of five, hundred dollars in cash, such payment to be made when the wall is used.”

It. was further provided that should it become necessary to repair or rebuild'the wall after the same should be used by the party of the second part, or his assigns, the cost thereof should be borne equally by, the parties or their representatives, heirs, executors, administrators or assigns. The final clause of the agreement was as follows:

> “ *Fifth.*That this agreement shall be binding on and enure to the benefit of the heirs, executors, administrators and assigns of the respective parties heretoj and shall be construed as a covenant running with the land, but that no part of the fee of said premises upon which said party wall may be erected shall be transferred or conveyed in or by these presents.”

*850The plaintiff thereafter erected a building upon his lot and in connection therewith erected the party wall in accordance with the agreement. The party of the second part died without having used the party wall or conveyed the premises. Title to the lot owned by him was conveyed by his executors to one Pichen, subject to the party wall agreement. Pichen subsequently erected a house upon the lot and used the party wall, but did not pay the $500 to the plaintiff; and he thereafter > subsequently conveyed the premises to the ■ defendant, the conveyance .being made expressly subject to the party wall agreement. -The action is brought upon the theory that' the $500 became a charge upon the landowner when Pichen, defendant’s grantor, used the Avail .and continues a charge thereon.

The question presented for decision is whether the covenant to pay ran with the. land. It is clear that the covenant as to the payee, or in other words,'-as to the benefit of the obligation to pay, did not run with the land and it was so .decided by this court in construing this Identical agreement in *Schwenker v. Picken*(91 App. Div. 367). The obligation to pay, whoever is bound thereby, ran to the plaintiff when he constructed the wall and he clearly did not make it in favor of his land' so that it runs to his grantee. It is. expressly provided in the agreement that the fee to the land upon which the wall was constructed was not conveyed; but it ic manifest that an easement was created thereby in. favor of each lot for the support and maintenance of the party wall in part upon the other. We are not now called upon to decide'whether if plaintiff still owned, the lot, which he, owned at the timo the party wall agreement was made, there would be a privity of estate between him and the owner of the other lot, for- even so, it is manifest that upon conveying his lot he ceased to retain any interest in the land. He could not retain an easement in favor of land which he conveyed for the support and maintenance of the wall in part upon the adjacent premises, for such easement was appurtenant to the land which he conveyed and necessarily passed to his grantee. *(McKenna*v. *Brooklyn Union Elevated R. R. Co.,*184 N. Y. 391.) In this respect the case *of Guentzer*v. *Juch*(51 Hun, 397), relied upon, by the appellant, is distinguishable, for there the plaintiff who built the wall had not conveyed at the time he brought- the, action. *851Moreover, that case is distinguishable upon the ground that there the action was brought against the party who first used the wall, whereas here the defendant was not the first party to use the wall. The cases seem to hold that a covenant does not run with the land unless there is a privity of estate, and that such a covenant does not create a privity of estate, *(Cole*v. Hughes, 54 N. Y. 444 ; *Sebald*v. *Mulholland,*155 N. Y. 455 ; Washb. Real Prop. [6th ed.] §§ 1203, 1204.) Where the agreement does not contemplate the present construction of a party wall, but authorizes its construction by either party in the future, the rule is different and the covenant is said to create a privity of estate and to run with the land. *(Mott*v. *Oppenheimer,*135 N. Y. 312 ; *Sebald*v. *Mulholland, supra.)*The expression of opinion in *Schwenker*v. *Picken (supra)*that the parties intended that this covenant to pay when the wall was used should run with the land, was not a decision that it was effective for that purpose.

It follows that the judgment should be affirmed, with costs.

Patterson, P. J., McLaughlin, Houghton and Lambert, JJ.} concurred. . '

Judgment affirmed, with costs.