De Forest v. Byrne

1 Hilt. 43

• Court: New York Court of Common Pleas
• Decided: February 15, 1856
• Status: Published

Opinion

Daly, J. —

The premises were demised to Bridges to be occupied as a lumber yard, and the defendant, as the assignee of Bridges, saw fit to devote them to another use, in consequence of which, they became subject to the payment of a certain water tax. This tax was a lien upon the land, and to discharge the lien the plaintiff paid the tax, after it had been demanded of the defendant and he had refused to pay it. I think there can be no doubt of the plaintiff’s right to recover it from the defendant.

By the terms of the demise, the plaintiff agreed to let and the tenant to take, the premises, to be occupied as a lumber yard. This was an express covenant to occupy them as a lumber yard. To constitute an express covenant, no formal, technical, or precise terms are required; but wherever the intent of the parties can be collected out of the deed, for the doing or the not doing a particular thing, that is sufficient to make an express covenant. ’ Platt on Covenant, 27. The intention here is as plain as if the words of the lease were “ I covenant and agree to occupy the premises as a lumber yard,” and occupying them for another purpose was a breach of the covenant. The case of Kinney v. Watts (14 Wend. 38) was very different. There, under a demise for years, tbe defendant was sought to be charged upon a covenant for quiet enjoyment. As no such covenant ‘was expressed, it had to be implied as the necessary consequence of the grant of the land, but as no covenant, in a conveyance of real estate, can be implied under the Revised Statutes (1 Rev. Stat. 738), it was held that the plaintiff could not maintain an action of covenant for a disturbance of his possession, though he might have maintained one for the injury done. But here the defendant expressly agreed that the premises should be occupied as a lumber yard; that was a covenant running with the land, and the assignment to the defendant was subject to that covenant. The erection of the buildings, therefore, was a wrongful act, and the defendant having thereby imposed a permanent charge iqpn the plaintiff’s property, which he refused to pay off, the plaintiff was forced to discharge it to release the property, and has a claim against the defendant for restitution.

Judgment affirmed.