#### John T. Farley, Plaintiff, *v.*Frederick S. Howard, Defendant.

(Supreme Court, New York Trial Term,

November, 1900.)

Covenant against incumbrances — Implied easement excluded — It cannot be acquired or created against a tenant in common without his consent — Estoppel.

Where the owner of a city lot known as No. 32 erects thereon, of his own motion, a house whose stoop encroaches upon an adjoining lot known as No. 34 of which he is only a tenant in common, he acquires as against his cotenant no implied easement to support the stoop on lot No. 34.

Where, therefore, the owner of lot No. 32, after having purchased the interest of his cotenant in lot No. 34, conveys the whole of lot No. 34 with a covenant against incumbrances, his grantee of that lot can maintain no action against him upon the said covenant in order to recover certain expenses (caused in part by. a *mesne*grantee of lot No. 32 who sought by injunction to prevent such action) which he incurred when cutting away so much of the stoop of lot No. 32 as encroached upon lot No. 34, and this because the *mesne*grantee of lot No. 32 had himself no right to maintain so much of his stoop as encroached upon lot No. 34.

Under such conditions, the implied easement does not pass under the covenant and, therefore, cannot inure, by estoppel, to the benefit of the covenantee.

One tenant in common cannot, without the consent of his cotenant, ■ create by deed an easement in the land held in common.

Action to recover damages for an alleged breach of a covenant against incumbrances contained in a deed made by defendant to plaintiff.

*58Redfield, Redfield & Lydon, for plaintiff.

Cannon & Cannon, for defendant.

Truax, J.

This action is brought to recover damages for an alleged breach of a covenant against incumbrances contained in a deed made by the defendant to the plaintiff on March 31, 1892, of a certain lot in Hew York city known by the street number 34 West Seventy-second street, on the ground that at the time of such conveyance such property was subject to a certain easement or servitude alleged to have been theretofore acquired by one Boskowitz, the owner of the premises No. 32 West Seventy-second street, adjoining the premises No. 34 on the east thereof. On the 11th of Hovember, 1886, this defendant and one Cornelius J. Dumond owned, as tenants in common, two adjoining lots, Nos. 32 and 34 West Seventy-second street, in the city of Hew York, each being the owner of an undivided half thereof. On the 1st of March, 1887, by a deed dated that day, the said Cornelius J. Dumond and his wife conveyed to this defendant, Frederick S. Howard, his (Dumond’s) half of said lot No. 32, so that at said time the defendant Howard was seized of the whole lot No. 32, but as to lot No. 34 he was in his original position, namely: the owner of an undivided one-half thereof. While the ownership of the two lots was as above stated, the defendant Howard erected a house on lot No. 32, the stoop of which projected some six inches over on to the land of lot No. 34. On November 12, 1887, by deed dated that day, the defendant Frederick S. Howard conveyed to his wife, Maretta W. Howard, the house and lot No. 32. On the 14th of May, 1889, by deed dated that day, Dumond conveyed his interest in lot No. 34 to the defendant herein. On April 23, 1890, by deed dated that day, Maretta W. Howard conveyed to one Ignatz Boskowitz lot No. 32. The defendant joined in such deed, but did not join in any of the covenants therein contained. On March 31, 1892, by deed dated that day, this defendant conveyed to the plaintiff the lot No. 34. Defendant’s wife, Maretta W. Howard, joined in said deed for the purpose of releasing her inchoate right of dower, but did not finite in any of the covenants in said deed. After the purchase of the lot by the plaintiff he commenced building thereon, and, while building, started to remove that portion of the stoop of house and lot No. 32, which was on lot No. 34, *59whereupon the owner of No. 32, Mr. Boskowitz, commenced an action against the plaintiff herein, and obtained a temporary injunction restraining him from cutting away such stoop. This injunction was afterwards vacated, and a judgment was entered in the action, on consent, dismissing the complaint on the merits, and further adjudging that the defendant in that action (the plaintiff in this action) was the owner of the fee of the premises No. 34. The damages asked for in this action are for the expense of cutting away said stoop encroaching on No. 34 and for certain legal expenses incurred in the said action of Boskowitz v. Farley. In order to maintain this action plaintiff must show that the said Boskowitz, as the owner of house and lot No. 32, had a valid easement for the support of his stoop on a part of lot No. 34 at the time the plaintiff became the owner of No. 34. Undoubtedly, if the defendant at the time of the conveyance by him of No. 32 had been the sole owner of No: 34, the purchaser of No. 32 would acquire, by reason of the circumstances, the right to maintain the stoop of No. 32 in the condition it was in at the time of such conveyance. Wilson v. Wightman, 36 App. Div. 41. This right, Mr. Justice Ingraham, in the case last cited, calls an *“*implied easement,” which rests upon the principle that when the owner of lots sells a part thereof he grants by implication to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted, and which at the time of the grant are used by the owner of the entirety for the benefit of the part granted. But the plaintiff claims that, because the defendant became the sole owner of lot No. 34, he is estopped from disputing the right of Boskowitz to maintain the stoop of No. 32 in the condition it was in at the time he, defendant, parted with the title of lot No. 32. It is true that it has been frequently held that if one without any title makes a deed of land with covenant of warranty and afterwards acquires title to the whole it will inure to the benefit of the covenantee by the weight of estoppel, but I can find no case nor have I been referred to any case in which the rule above stated has been held to apply to a case like the present case. House v. McCormick, 57 N. Y. 310, is relied upon by plaintiff to sustain the doctrine contended for by him. In that case the covenant applied to the whole of the estate conveyed, and not to an implied easement, and to the same effect is Tefft v. Munson, 57 N. Y. 97. House v. McCormick, supra,*w*as distinguished and limited in Sherman v. Kane, *6086 N. Y. 57, in which case it was held that a grantor with warranty may, subsequent to the delivery of his grant, originate an adverse-possession, and is not estopped from asserting the same by the covenant of warranty. In the case last cited it was further held that the rule laid down in Wilklow v. Lane, 37 Barb. 244, that the deed covered any title or interest which might be subsequently acquired, was not sustained by the authorities. I am of the opinion that the owner of No. 32 did not have the right to maintain his stoop on plaintiff’s premises, and if he did not have such right, of course none of the covenants in the deed to plaintiff were broken. It is also to be noticed that the action of Boskowitz against the plaintiff was decided adversely to Boskowitz upon this point. Certainly it cannot be held that the covenant of quiet enjoyment contained in the deed made by the defendant to the plaintiff was broken because an unfounded claim was made in hostility to the possession of the grantee. Plaintiff also contends that because the defendant was a tenant in common with another person in lot No. 34, he had the legal right, without the consent of his cotenant, to give an easement on the lot. This contention is unfounded. The defendant could not even by deed incumber his cotenant’s interest in the property. The complaint is dismissed, with costs and an extra allowance of fifty dollars.

Complaint dismissed, with costs.