Ward v. McCarthy

202 A.D. 849

Opinion

The common grantor, the West Roekaway Land Company, was without power, by subsequent action, to change or modify the written terms of the covenant contained in its deeds to the premises in question, after it had parted with the title thereto. (Gutting v. Eiermann, 165 App. Div. 916.) It follows that the judgment must be reversed upon the law, and the complaint dismissed, with costs. Findings of fact numbers 5, 15, 16, 17, 19 and 20, and conclusions of law numbers 1 and 2 are reversed, and in their place and stead the following are found: Findings 10, 11, 12, 13 and 14 of defendant’s proposed findings of fact, and the following conclusions of law: (1) That the common grantor, the West Roekaway Land Company, was without power to alter or modify the terms of the written covenant contained in prior deeds to the premises owned by plaintiffs and defendant, after it had parted with the title thereto. (2) The complaint is dismissed, with costs to defendant. Blaekmar, P. J., Rich, Jaycox and Young, JJ., concur; Kelly, J., dissents. Settle order on notice.