APPEAL from an order of the Supreme Court at Special Term (DI FALCO, J.), entered December 23, 1952, in Bronx County, denying a motion by defendants for an order dismissing the complaint.
Maurice J. McCarthy, Jr., for appellants.
Louis Okin of counsel (Sohn & Okin, attorneys), for respondent.
DORE, J. P.
In this suit by plaintiff for a temporary and final injunction against defendants, the court on defendants' consent, without prejudice, granted a temporary injunction restraining defendants pending the trial and final determination of the action from discontinuing the heat heretofore supplied to plaintiff's premises from the premises owned by defendant, Dora Ettinger. The court in a separate order denied the defendants' cross motion to dismiss the complaint for insufficiency under subdivision 4 of rule 106 of the Rules of Civil Practice; from the order denying defendants' motion to dismiss, defendants appeal and the sole issue on appeal is the sufficiency of the complaint.
Defendant, Dora Ettinger, owns a four-story apartment house in the Bronx immediately contiguous to and south of plaintiff's property, a one-story building containing six stores. The parties acquired title to their respective properties from a common grantor; both buildings were heated from a heating plant in the building now owned by defendant Dora Ettinger; the deed conveying the property to her contained an express covenant under which she agreed to supply heat to the one-story building adjoining to the north (now owned by plaintiff) as long as heat was supplied to her own premises; and, in consideration thereof, the owner of plaintiff's premises agreed to pay the owner of the apartment building 'its successors or assigns the sum of $300 per annum' with the privilege to the owner of plaintiff's building 'to cancel this covenant and agreement upon giving three months' written notice to the then owner' of defendants' premises.
The common grantor retained possession of plaintiff's premises for seven years until 1946, and during such time heat was supplied by Dora Ettinger and the stipulated $300 paid. In
1946, the common grantor conveyed plaintiff's property with the stores to plaintiff under a deed making the transfer subject to the agreement to supply heat pursuant to the terms of the deed to Dora Ettinger's property. Dora Ettinger thereafter threatened to discontinue supplying heat to plaintiff's building and plaintiff instituted this action for an injunction.
We think defendants' motion to dismiss was properly denied. Irrespective of the existence or nonexistence of privity of contract, there is here privity of estate and under the allegations of the complaint, the covenant is such that a court of equity may enforce. Dora Ettinger accepted a deed to her property burdened by the requirement in question; that undertaking enured to the benefit of the grantor and its successor in interest, the plaintiff; and defendants recognized their obligation by supplying heat from 1939 to 1946, on payment of the amount stipulated in the deed. This court enforced a similar covenant requiring the supplying of heat in Zemel v. 1616 Corp. (277 A.D. 1098). On the facts alleged, the servitude imposed on defendant's building was retained by the grantor and is now owned by plaintiff; the contract was good between the original parties and, as plaintiff's property has no heating system, its violation would, under the facts alleged, work irreparable injury to plaintiff. It is not necessary that the covenant should be one technically running with the land in order that the covenant be enforced; the covenant does not contravene any rule of public policy nor is it incapable on proper proof of being enforced in a court of equity (Hodge v. Sloan, 107 N.Y. 244, 249, 250).
Plaintiff's suit does not seek to enforce the covenant against subsequent purchasers from the original grantee, Dora Ettinger (see Miller v. Clary, 210 N.Y. 127, 135); and there is here no necessary or absolute perpetuity involved. The covenant binds the original grantee, Dora Ettinger, only so long as she furnishes heat to her own property; and, as indicated above, there is another condition under which at the option of the owner of plaintiff's property the requirement may be ended. It is unnecessary on this motion to dismiss for insufficiency to decide now whether the covenant may be subject to implied contingencies for termination; on the state of facts alleged, within the limits of the covenant itself, we think plaintiff's complaint is sufficient (Miller v. Clary, 210 N.Y. 127, 136, supra).
Obviously there was mutuality between the parties to the deed from the common grantor to Dora Ettinger and the covenant was made conditional. ...