MacEllven v. Lincoln Rochester Trust Co.

Appellate Division of the Supreme Court of New York

MacEllven v. Lincoln Rochester Trust Co.

3 A.D.2d 977, 162 N.Y.S.2d 828, 1957 N.Y. App. Div. LEXIS 5473

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 15, 1957

StatusPublished

This text of 3 A.D.2d 977 (MacEllven v. Lincoln Rochester Trust Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

MacEllven v. Lincoln Rochester Trust Co., 3 A.D.2d 977, 162 N.Y.S.2d 828, 1957 N.Y. App. Div. LEXIS 5473 (N.Y. Ct. App. 1957).

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Opinion

Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: Appellant moved in the court below for an order dismissing the complaint upon the ground that plaintiff is without legal capacity to sue (Rules Civ. Prac., rule 107, subd. 2). Plaintiff is the only statutory distributee of one Maria Andruss, deceased. [978]*978Defendant-appellant is the executor of the last will of one Emily P. Wolcott, deceased. In 1916 Miss Wolcott and Maria M. Andruss, owning adjoining parcels of land, agreed in -writing that if either wished to sell her property, the other should have first option to buy, and that the contract “shall apply to and bind the heirs, executors, administrators, or assigns of said parties.” The Andruss parcel was thereafter conveyed to others, the option not having been exercised by Miss Wolcott. Plaintiff, therefore, has no interest whatsoever in either parcel, yet he now seeks to set aside a conveyance of the Wolcott property by defendant executor and claims the right to purchase that parcel founded upon the 1916 agreement. In our opinion that contract was designed to benefit the adjoining parcels of land by conferring reciprocal rights and duties upon the owners thereof, whether they should be the original parties to the agreement, their heirs, representatives or assigns. That being so, the benefits of the contract ran with the land and since this plaintiff has no interest therein, he lacks standing or capacity to enforce an agreement not made for his protection. (Neponsit Property Owners' Assn. v. Emigrant Ind. Sav. Bank, 278 N. Y. 248; Gilbert v. Van Kleeck, 284 App. Div. 611; Restatement, Property, § 949.) All concur. (Appeal from an order of Yates Special Term denying defendant’s motion for dismissal of the complaint upon the ground that plaintiff has not legal capacity to sue.) Present—McCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.

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Order reversed on the law and facts, with $10 costs and disbursements, and motion granted, with $10 costs. Memorandum: Appellant moved in the court below for an order dismissing the complaint upon the ground that plaintiff is without legal capacity to sue (Rules Civ. Prac., rule 107, subd. 2). Plaintiff is the only statutory distributee of one Maria Andruss, deceased. [978]*978Defendant-appellant is the executor of the last will of one Emily P. Wolcott, deceased. In 1916 Miss Wolcott and Maria M. Andruss, owning adjoining parcels of land, agreed in -writing that if either wished to sell her property, the other should have first option to buy, and that the contract “shall apply to and bind the heirs, executors, administrators, or assigns of said parties.” The Andruss parcel was thereafter conveyed to others, the option not having been exercised by Miss Wolcott. Plaintiff, therefore, has no interest whatsoever in either parcel, yet he now seeks to set aside a conveyance of the Wolcott property by defendant executor and claims the right to purchase that parcel founded upon the 1916 agreement. In our opinion that contract was designed to benefit the adjoining parcels of land by conferring reciprocal rights and duties upon the owners thereof, whether they should be the original parties to the agreement, their heirs, representatives or assigns. That being so, the benefits of the contract ran with the land and since this plaintiff has no interest therein, he lacks standing or capacity to enforce an agreement not made for his protection. (Neponsit Property Owners' Assn. v. Emigrant Ind. Sav. Bank, 278 N. Y. 248; Gilbert v. Van Kleeck, 284 App. Div. 611; Restatement, Property, § 949.) All concur. (Appeal from an order of Yates Special Term denying defendant’s motion for dismissal of the complaint upon the ground that plaintiff has not legal capacity to sue.) Present—McCurn, P. J., Vaughan, Williams, Bastow and Goldman, JJ.

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Bluebook (online)

3 A.D.2d 977, 162 N.Y.S.2d 828, 1957 N.Y. App. Div. LEXIS 5473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macellven-v-lincoln-rochester-trust-co-nyappdiv-1957.

Opinion

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