Post, plaintiff in error, vs. Kearney, defendant in error

Post, plaintiff in error, vs. Kearney, defendant in error. A lessee’s covenant to pay assessments runs with the land, and binds the assignee of the term. Where the assignee of a lessee demised the premises for the residue of the term, reserving the delivery of possession at the end of the term, and the intermediate possession in case the buildings were destroyed by fire ; held, that such demise was a sub-lease, and not an assignment of the term. Where a lessee covenants to pay " all assessments for which the premises shall be liable,” he is bound to pay an assessment subsequently imposed for opening a street, although it was not authorized by any law existing at the time the lease was executed. Kearny v. Post, 1 Sandf. 105, affirmed. In 1799, John Watts demised to John Ellis certain premises situated in the city of New York, for the term of twenty-one years, and by another agreement, made in June, 1821, the lease was continued for twenty years longer. In the lease Ellis cov enanted to pay all rates, taxes and assessments, for which the premises should be liable, rated, or assessed. In October, 1821, the lessee assigned the lease to John Ellis, jun. and John R. Thomas, and they, in 1822, mortgaged the premises (referring to the lease) to the W ashington Insurance Company, and that company foreclosed in 1830, by suit in chancery, and purchased the premises under the decree. In 1831 the company conveyed the residue of the term to the defendant, Post, subject to the rents and covenants in the lease contained. Watts died in 1836, haying made his will, whereby he devised to the plaintiff part of the premises included in the lease. In 1837, the premises so devised to the plaintiff were assessed the sum of $737 pursuant to the statutes relating to the opening of streets in the city of New-York. In 1840 the premises were sold to pay the assessment, and in 1842, within the time for redemption, the plaintiff paid the amount, and brought this action on the covenant contained in the lease, to recover it from the defendant. The defendant proved, that in 1831 he leased the premises to one Shepherd for the whole unexpired term. That lease contained a covenant on the part of Shepherd that on the last day of his term he would surrender the possession of the demised premises to the defendant. It also contained a clause by which the lease was to be determined in case the buildings should be destroyed by fire. It was insisted at the trial, on the part of the defendant, that the assessment, to recover which the suit was brought, was not within the covenant contained in the original lease ; that such assessment was extraordinary, enuring to the benefit of the reversion, unknown to the laws existing at that time, and not in the contemplation of the parties when they entered into the contract. It was also contended that the covenant to pay taxes, rates and assessments, did not run with the land, and therefore that the defendant was not liable : and it was further insisted that the lease to Shepherd was a grant by the defendant to him of the whole unexpired term, and divested the defendant of all interest. These positions were overruled, and the plaintiff had a verdict. The superior court of the city of New York, where the action was commenced, denied a motion for a new trial made on bill of exceptions, and gave judgment for the plaintiff. (See 1 Sandf. Sup. Court Rep. 105.) The defendant brought error to this court. J. Prescott Hall, for plaintiff in error, J. Miller, for defendant n error. [MAJORITY — Gardiner, J.] Gardiner, J. The defendant contends, 1st. That the cov.enant in the original lease to pay assessments did not run with, the land. It is obvious that this covenant affected the value and, in this case, the mode of enjoying the demised property It was more than a covenant collateral to the land, and was therefore, assignable. (Taylor’s Land Ten. 128; 5 Coke 25; 17 Wend. 148; 5 Id. 615.) That the defendant was assignee in fact, distinctly appears from the recital in the lease executed by him to Collins Shepherd, of the premises in question. 2d. The lease between the parties last mentioned is in the usual form, with covenants by the lessee for the payment of rent, and for the surrender of the premises at the dose of the term in good order and condition. Shepherd therefore did not hold the premises as assignee, but as the under tenant of the defendant. (Pigot v. Maison, 1 Paige, 414, 415.) 3d. It is insisted that the assessment in question is not embraced by the terms of the covenant of the lease of 1799, that it is extraordinary, and not within the contemplation of the parties, or the law, as a part of the rent reserved; that no assessments, but those authorized by the law existing at the execution of the lease, are within its terms. By the provisions of the lease of 1799, the lessee covenanted, in consideration of the demise, “ to discharge all such rates, taxes, and assessments, (which comprehends every charge imposed by public authority.) for which said premises shall be liable, or shall be raised, levied, or assessed on the same during the continuance of the lease.” The lease continued from 1799 to 1841, the defendant admits. The assessment was imposed by resolution of the common council of the city of New-York, and the report of the commissioners was subsequently confirmed by the supreme court. It was one therefore for which the premises were liable. The defendant became assignee of this lease by a conveyance from the insurance company, made in express terms, “ subject to the rents and covenants in said indenture of lease mentioned.” By those covenants, the lessee or assignee was to provide for all assessments, whether imposed according to laws then existing, or those subsequently enacted. What the precise character or amount of the subsequent assessments would be, could not be known, although the parties must have anticipated an increase during a term of forty years, and in a city rapidly growing in importance. Of all this the tenant agreed to take the hazard, and to obtain compensation in a diminished rent, and the increased value of the demised premises. The covenant is, we think, perfectly plain; and unless there is some law that prohibited parties from making their own contracts, the defendant must abide by the one he has voluntarily assumed. The decision of the judge was correct, and the judgment must be affirmed. Judgment affirmed.