ticular act." People v. Flagg, 46 N. Y. 401, 405. An ordinance, which requires a surface railroad car to place a sign or placard showing its destination is well calculated to regulate the running of cars so as to prevent the congregating upon the streets of individuals who would be otherwise unexpectedly required to leave the car whenever the railroad officials decide not to permit the car to proceed further. It is not likely that an intending passenger would deliberately board a car which is not to reach his destination, when he might avoid the necessity of change by riding upon one which will carry him to his destination. The ordinance, read in its entirety, is clearly a regulation affecting the running of cars, and one which the municipality may deem necessary for the "convenient use and the accommodation of the streets," and therefore within the power expressly conferred by the charter. I concur in the views expressed by Mr. Justice GILDERSLEEVE, and in his conclusions. The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur. (91 App. Div. 364.) FOX v. MAHONY. (Supreme Court, Appellate Division, First Department. February 19, 1904.) 1. CONTRACT-CONSTRUCTION-SPECULATION IN REAL ESTATE-DIVISION OF PROFITS-REFUSAL OF ONE PARTY TO SELL-DAMAGES. Where one who takes title to realty in his own name, pursuant to an agreement by which he is to sell it and divide the profits or share the loss with another in a certain proportion, constructs apartment houses thereon, after the other person's death, which he rents, thereby rendering a sale of the land apart from such buildings impossible, the decedent's personal representative is entitled to equitable relief, charging the land with that part of the difference between the original cost, with the expense of carrying the lots, and their value when the buildings were erected, or at some other appropriate period, as corresponds to decedent's share of the profits. Appeal from Special Term. Action by Edward Fox, as administrator of the estate of Patrick Fox, deceased, against John J. Mahony. From a judgment dismissing the complaint after trial, plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and MCLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ. Louis Van Doren, for appellant. PATTERSON, J. It appeared by the allegations of the complaint and by the proofs in this action that Patrick Fox and the defendant John J. Mahony made an agreement in December, 1892, whereby Mahony was to acquire and take title to certain real estate in Ninety-Seventh street, in the city of New York, and that, on a resale of such premises, Fox should be entitled to receive out of the proceeds of such sale 10 per centum of the profits accruing therefrom, and Mahony 90 per centum of such profits, or, in the event of a loss, Fox should suffer and and 120 New York State Reporter bear 10 per centum of the loss, and Mahony 90 per centum thereof. Mahony took title to the premises. Fox died in 1896. The premises were not then sold. After the death of Fox, and in or about October, 1900, Mahony, still holding the title to the premises, built and constructed thereon several apartment houses, which have been rented to various tenants. This action is brought by the personal representative of Fox, seeking not merely an accounting of the sale of the premises, but also relief based upon the failure and neglect of Mahony to sell the premises, and upon his taking them to his own account, and erecting upon them buildings of which he is ostensibly the absolute owner, and by doing which he is prevented from selling the lots independently of the buildings; thus making it impossible for him to account to the plaintiff for the proceeds of a sale thereof. The plaintiff seeks also to have either his right to profits or his liability for losses on the transaction judicially determined. At the trial the complaint was dismissed on the ground that the plaintiff had not established facts sufficient to constitute a cause of action. That ruling of the court was made upon the assumption that there was nothing in controversy between the parties except the right of the plaintiff's intestate to receive profits upon an absolute sale of the lots when actually made by the defendant Mahony. It is true that under the form of the agreement, the evidence of which is made by the defendant himself, up to the time of the death of the plaintiff's intestate either Mahony or the plaintiff's intestate might have sold the lots, as was held by the referee on the trial of action No. 1, which involved this same contract, but related to a different piece of real estate. When the plaintiff's intestate died, the obligation of the defendant remained. In action No. I the referee held that, while a strict copartnership relation as to the real estate was not established between the defendant and the plaintiff's intestate, yet their rights were to be determined by the law applicable to the relation of partners; and we affirmed the judgment entered upon the referee's report. 87 App. Div. 617, 84 N. Y. Supp. 1126. The court below in the present case seems to have regarded the plaintiff's intestate's right as consisting only in his being entitled to profit if and when a sale were actually made; ignoring altogether the alternative duty of the defendant to sell the lots, or to maintain them in such a shape that they might be sold, and the rights of the respective parties be determined and adjusted. The plaintiff, in the complaint, states facts showing that the defendant has made it, by his own act, impossible to sell the lots. He has taken them over to himself, and built upon them expensive houses. Thus having rendered it impossible to sell the lots independently, the defendant seems to claim that the representative of Fox is not entitled to any relief at all. In other words, by his own act the defendant has confiscated and appropriated to himself the interest which the plaintiff's intestate had in and to whatever, if anything, might have been the profits of a sale of these lots. It seems to be clear that the plaintiff, as the personal representative of his intestate, has no action at law, and that the allegations of the complaint and the proofs are sufficient to entitle him to some relief, which, although it does not consist in an account of profits of the sale of the lots, does consist in the right to charge upon the land such an amount, if any, not exceeding 10 per centum of the difference between the original cost and the expenses of carrying the lots, and their value when the defendant put them in such a situation that they could not be sold under the terms of the arrangement which the defendant shows was made between the plaintiff's intestate and himself, or their value at any other appropriate period. Without now determining to what extent that relief may be afforded, it is sufficient to say that the complaint was improperly dismissed, and that the judgment should be reversed, and a new trial should be ordered, with costs to appellant to abide the event. All concur. (91 App. Div. 367.) SCHWENKER v. PICKEN. (Supreme Court, Appellate Division, First Department. February 19, 1904.) 1. PARTY WALLS-USE OF ADJOINING Owner-CONDITIONS PRECEDENT-PROPORTIONAL PAYMENT-COVENANTS-ENFORCEMENT BY GRANTEES. Adjoining lot owners entered into an agreement whereby one was to build a wall equally on the land of each at his own expense, and the other was to have the privilege of using the same on payment of $500. The agreement provided that it should be binding on the heirs, executors, and assigns of the parties, and should be construed as a covenant running with the land. The wall was built, and subsequently the party building the same conveyed his premises to plaintiff. The other party's premises came into the hands of defendant, who started to make use of the wall built by plaintiff's grantor without making the payment stipulated for in the contract. Held that, whatever the effect of the covenants contained in the agreement as to the use of the party wall by defendant or his predecessors, the right to receive payment as a condition precedent to such use was personal to plaintiff's grantor, and did not pass to plaintiff by the conveyance to him. Appeal from Special Term, New York County. Action by Otelia W. J. Schwenker against James C. Picken. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed. Argued before VAN BRUNT, P. J., and HATCH, McLAUGHLIN, O'BRIEN, and INGRAHAM, JJ. Jacob Marks, for appellant. Harold Swain, for respondent. INGRAHAM, J. The complaint alleges that on the 28th day of February, 1899, James C. Crawford was the owner of the premises on the north side of 118th street, 225 feet westerly from the northwesterly corner of 118th street and Lenox avenue; that one Francis Crawford was the owner in fee of a plot of land adjoining the said above-described premises on the east; that on or about the 28th day of February, 1899, the said James C. Crawford and Francis Crawford executed and delivered an agreement, a copy of which is annexed to the complaint, which was duly recorded in the office of the register of the county of New York on the 3d day of March, 1899; that the said agreement was between said James C. Crawford, party of the first part, and Francis 1. See Party Walls, vol. 38, Cent. Dig. § 49. and 120 New York State Reporter Crawford, party of the second part, and recites the ownership of the respective pieces of real property by the parties to the agreement, and it was agreed that the party of the first part should proceed without delay to erect the easterly wall of the most easterly house on the premises owned by him, "one-half on the land owned by the said party of the first part and one-half on the land owned by the said party of the second part," and should complete the said wall as soon as may conveniently be done; that the said wall shall be at least 44 feet in height above the level of the curb, and at least 56 feet in depth, with privileges of building extension wall 14 feet in depth and such height as shall or may be desired, and said wall to be at least 12 inches in thickness, with a foundation wall 2 feet in thickness; that "the entire cost of erecting the said wall shall be borne by the said party of the first part hereto, or his assigns, and that the party of the second part hereto or his assigns shall be at liberty at any time hereafter to use the said wall for all the purposes of a party wall for any house which he or his assigns may erect on said land owned by the said party of the second part upon payment by the said party of the second part or his assigns to the said party of the first part, his legal representatives or assigns, of the sum of $500 in cash, such payment to be made when the wall is used"; and that "this agreement shall be binding on and inure to the benefit of the heirs, executors, administrators, and assigns of the respective parties hereto, and shall be construed as a covenant running with the land, but that no part of the fee of said premises upon which said party wall may be erected shall be transferred or conveyed in or by these presents." The complaint further alleges that after the making of said agreement James C. Crawford erected a building upon his property the easterly wall of which was one-half on the land owned by him and the other half on the land owned by Francis Crawford; that James C. Crawford, on the 28th day of February, 1902, conveyed to the plaintiff his property by a full covenant warranty deed, which was duly recorded, and by which deed there was conveyed to the plaintiff in fee simple the premises with the building thereon erected, together with the appurtenances and all the estate and rights of the said James C. Crawford in and to said premises; that the plaintiff accepted the said deed and transfer, and paid the consideration therefor to the said James C. Crawford, and relying upon. the statement that the said walls were erected pursuant to said agreement, and relying upon her rights under said agreement as to the said party wall aforesaid, she paid and parted with an increased consideration on account thereof; that after the making of said agreement the said Francis Crawford died, leaving a last will and testament, which was duly admitted to probate, and letters testamentary under said will were duly issued to Margaret Crawford, William E. Diller, and James C. Crawford, and that they have duly qualified as such executors; that under the power and authority of said will the said executors, by deed dated January 7, 1903, conveyed to the defendant in this action the fee simple of the premises described in the complaint as belonging to the said Francis Crawford, and that the defendant is now the owner of said premises; that the said conveyance to the defendant was made subject to and with the benefit of the said party-wall agreement mentioned, which conveyance was duly recorded; that the defendant, with full knowledge of said agreement and of the plaintiff's rights in the premises, on or about the 19th day of March, 1903, began the erection and construction of a building upon his lot adjoining the easterly wall of the plaintiff's premises, and did unlawfully and wrongfully appropriate and make use of said easterly wall of the plaintiff's building as and for the westerly. wall of his building, without paying or offering to pay to the plaintiff the sum of $500 provided to be paid in said agreement, and that the plaintiff notified the defendant of her ownership and rights in the premises, and forbade the defendant from using or cutting into said wall without complying with the terms of said agreement, but that said defendant totally disregarded the provisions of said agreement, and without tendering to the plaintiff the said sum of $500 at the time of such use, or any part thereof, or at any other time, unlawfully and wrongfully began the use of said wall, and in the course thereof unlawfully and wrongfully cut or caused to be cut in said easterly wall of plaintiff's premises apertures in which he caused to be inserted beams for the support of the building so being erected by him, and in other respects has used and continues to use and threaten to further use and cut into the said wall as a wall and support of his building without paying or offering to pay to the plaintiff the sum of $500, and without complying with the terms of the said agreement; and that the said defendant has not yet completed the erection of said building, but is engaged in using the said easterly wall of the plaintiff's property in the construction of his building in violation of and in trespass of the rights and property of the plaintiff; that neither the said Francis Crawford, nor his executors, nor said defendant have complied with the terms of said agreement as to the conditions upon which said easterly wall of the plaintiff's premises could be used, and have not paid the said sum of $500 provided for in said agreement; and that plaintiff has demanded payment thereof from the defendant, and that the defendant has refused, and still refuses to pay the same. The complaint demands judgment that the defendant, his agents and employés, shall be perpetually enjoined from cutting into the said wall, or interfering with or using the same, or in any manner trespassing upon the said wall forming the easterly wall of the plaintiff's premises, and from further continuing the use of said wall for any purpose whatever, or further cutting into the same or trespassing upon the same, except upon and after paying to the plaintiff the sum of $500 for the use of the same, and that the plaintiff have judgment for the said sum of $500 and interest. To this complaint the defendant demurred upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained by the Special Term, and from the interlocutory judgment entered thereon the plaintiff appeals. It is quite clear that the parties to this agreement intended that the covenants should run with the land, and bind the grantees of both parties, and that, before either the party of the second part or his grantees should have the right to use this wall, he or they should first pay to the party of the first part or his assigns the $500; but it seems to have been held that such a covenant could not be perpetual, because when the amount was paid it would become inoperative, and it could not run with the land after being fully performed. Hart v. Lyon, 90 |