Greenfarb v. R.S.K. Realty Corp.

Decision Date31 March 1931
Citation256 N.Y. 130,175 N.E. 649
CourtNew York Court of Appeals Court of Appeals


Action by Sol Greenfarb against the R. S. K. Realty Corporation. From a judgment of the Appellate Division (229 App. Div. 250, 241 N. Y. S. 439), affirming a judgment of the Special Term dismissing the complaint, plaintiff appeals.


Appeal from Supreme Court, Appellate Division, Second department.

Harris Jay Griston and Alexander Bicks, both of New York City, for appellant.

Edward S. Greenbaum, Morris L. Ernst, and Alexander Lindey, all of New York City, and Abraham J. Herrick, of Brooklyn, for respondent.


The plaintiff entered into a contract in writing with the defendant, whereby the former agreed to purchase and the latter agreed to sell certain premises, ‘free from all incumbrances' except as stated in the contract. The contract specified certain mortgages and restrictive agreements to which the transfer was expressly made subject. It further provided that the transfer was to be ‘subject to restrictions and easements of record.’ On the law day the plaintiff refused to take title on the ground that the premises had been subjected to covenants, constituting incumbrances not specified in the contract, which were neither ‘restrictions' nor ‘easements.’ This action was subsequently instituted by the plaintiff to recover the down payment made.

The Edgemere Ocean Front Improvement Company, Inc., the defendant's predecessor in title, had been the owner of a rectangular tract of land, about 1,000 feet long and 200 feet wide, reaching from Bay avenue on the north to Ocean promendade on the south. The northern 600 fee had been designated parcel B; the southern 400 feet parcel A. The Edgemere Company sold all of parcel A to Kaplan and Miller. Contemporaneously, seller and buyer entered into written covenants, expressed to be binding upon their successors and assigns, and to constitute ‘covenants running with the land.’ The seller, the Edgemere Company, having retained title to parcel B, covenanted to lay out through the center of that parcel a roadway, 30 feet wide, from the north line of parcel A, on the south, to Bay avenue on the north, and to maintain the road at its own cost and expense. It also covenanted to lay a sewer through the entire length of parcel B, giving to the owners of A the privilege of connecting therewith; each of the parties ‘agreeing to maintain in proper repair the sewer laid across the land owned by each respectively.’ Kaplan and Miller, the purchasers, on their side covenanted to lay out a private road, 30 feet wide, continuing the road on parcel B from the south line thereof through the center of parcel A to Ocean promenade, and thereafter to maintain the road. The contract contained this clause, ‘the rights of way to be laid out as aforesaid to be and forever remain for the common use of the parties hereto, their successors and assigns, the tenants and occupants of parcels A and B.’ Thereafter the private road was laid out through parcels A and B, and termed Marvin street. Subsequently, the Edgemere Company conveyed to the defendant that lot of land in parcel B which the defendant contracted to sell to the plaintiff. The lot is bounded on the east by Marvin street, easements of passage in which are appurtenant to the lot. Do the covenants, entered into by the Edgemere Company and Kaplan and Miller, run with the land, to subject the lot in parcel B, which the plaintiff contracted to buy, to charges for the maintenance of the roadway and sewer pipe so far as they traverse the length of parcel B? If so, are the burdens imposed by the covenant either ‘restrictions' or ‘easements'?

It has been held that the burdens and benefits of covenants to maintain fences on boundary lines between railroad rights of way and lands adjoining run with the land. Blain v. Taylor, 19 Abb. Prac. 228;Moxley v. New Jersey & N. Y. R. Co., 66 Hun, 632, 21 N. Y. S. 347;Id., 143 N. Y. 649, 37 N. E. 824;Satterly v. Erie R. Co., 113 App. Div. 462, 99 N. Y. S. 309;Corwin v. New York & Erie R. Co., 13 N. Y. 42. The same is true of covenants between farmers to maintain line fences (Dey v. Prentice, 90 Hun, 27, 35 N. Y. S. 563;Countryman v. Deck, 13 Abb. N. C. 110); of covenants by a railroad to maintain overhead crossings over its right of way for the benefit of adjoining owners who granted the easements in part (Aikin v. Albany, V. & C. R. Co., 26 Barb. 289;Post v. West Shore R. Co., 123 N. Y. 580, 26 N. E. 7); of covenants between adjoining owners binding them to share equally the expense of repairing or rebuilding a party wall (Mott v. Oppenheimer, 135 N. Y. 312, 31 N. E. 1097,17 L. R. A. 409;O'Neil v. Van Tassel, 137 N. Y. 297, 33 N. E. 314). In Holmes v. Buckley, 1 Eq. Cas. Abr. 27, it was held that the successors in title of one who had granted a water course across his premises to another, and had covenanted from time to time to cleanse the same, must cleanse it at the behest of those who succeeded to title in the water course. This court, in Miller v. Clary, 210 N. Y. 127, 132,103 N. E. 1114, 1116, L. R. A. 1918E, 222, Ann. Cas. 1915B, 872, after stating the English rule to be that an affirmative or positive covenant does not run with the land, noted the exceptions to be ‘covenants to repair fences on boundary lines; to repair private ways, and covenants in leases.’ In a recent case this court considered the question whether covenants to maintain a private right of way ran with the land to bind abutting owners not parties to the covenant. Levy v. Schnurmacher Const. Corp., 255 N. Y. 83, 86, 174 N. E. 70, 71. Although the covenant was held not to be binding upon the particular litigant, the court said, ‘Such a covenant is a recognized exception to the general rule that covenants running with the land do not bind to the performance of affirmative acts.’


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25 cases
  • Sutera v. Go Jokir, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 17 Junio 1996
    ...owner may be required to perform maintenance functions if a covenant so provides or in other "special circumstances." Greenfarb, 256 N.Y. at 135, 175 N.E. 649; Elzer v. Nassau County, 111 A.D.2d 212, 213, 489 N.Y.S.2d 246 (2d Dep'tsuggesting that a servient owner may by covenant relieve the......
  • Cardinal v. Long Island Power Authority, 99-CV-8182(SJF)(WDW).
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    • 10 Marzo 2004
    ...duty to repair or maintain, there are recognized exceptions to the rule. See Sutera, 86 F.3d at 302; Greenfarb v. R.S.K. Realty Corp., 256 N.Y. 130, 135, 175 N.E. 649 (1931); Elzer v. Nassau County, 111 A.D.2d 212, 213, 489 N.Y.S.2d 246 (N.Y.App. Div., 2d Dep't 1985). The duty to prevent in......
  • Cesario v. Chiapparine
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    • New York Supreme Court Appellate Division
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    ...duty of maintenance and repairs was imposed upon the defendant Chiapparine as the owner of the servient estate (Greenfarb v. R. S. K. Realty Corp., 256 N.Y. 130, 175 N.E. 649; Matter of Schenectady Ry. Co. v. Greene, 227 App.Div. 11, 236 N.Y.S. 477, affd. 257 N.Y. 610, 178 N.E. 816). By rea......
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    ...crossings, Post v. West Shore R.R. Co., 123 N.Y. 580, 26 N.E. 7, or to make repairs to buildings or fixtures, Greenfarb v. R.S.K. Realty Corp., 256 N.Y. 130, 175 N.E. 649; Clemente Bros., Inc. v. Peterson-Ashton Fuels, Inc., 29 A.D.2d 908, 287 N.Y.S.2d 955; Morehouse v. Woodruff, 218 N.Y. 4......
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