NICHOLSON v. 300 BROADWAY REALTY CORP.

Attorney(s) appearing for the Case

John R. Davison for appellants.

Arthur J. Harvey for respondent.

Chief Judge CONWAY and Judges DESMOND, FROESSEL and BURKE concur with Judge FULD; Judge VAN VOORHIS concurs in the following memorandum in which Judge DYE concurs: In Guaranty Trust Co. v. New York & Queens County Ry. Co. (253 N.Y. 190, 204), it was said in the opinion by CARDOZO, Ch. J.: "Subject to a few exceptions not important at this time, there is now in this State a settled rule of law that a covenant to do an affirmative act, as distinguished from a covenant merely negative in effect, does not run with the land so as to charge the burden of performance on a subsequent grantee". In Neponsit Property Owners' Assn. v. Emigrant Ind. Sav. Bank (278 N.Y. 248, 256), this statement was quoted in the opinion by Judge LEHMAN, coupled with the statement in relation thereto: "We have not abandoned the historic distinction drawn by the English courts." Insofar as the instant case deals with this question, I concur in holding that this covenant to supply heat runs with the land for so long as both buildings remain standing and in use. In thus voting, however, I do so on the assumption that the rule above stated is not being overruled but remains in force subject to this and a few other exceptions.