Kidder v. Port Henry Iron Ore Co.

In 201 Hew York, 445, a demurrer to the complaint in this action was sustained on.the ground that the alleged covenant was not set out in terms, and the court was unable to determine whether or not it was such • a covenant as ran with the land. The plaintiff accordingly amended his complaint, setting out the covenant in full. The order appealed from strikes from this amended complaint as redundant the allegations, in substance, (1) that the covenant alleged to run with the land was entered into for the benefit of the plaintiff’s premises and to render them more valuable and useful as a place for conducting, the grain business; (2) that the alleged covenant is a covenant running with plaintiff’s premises and was by the parties understood and intended to be such; (3) that when plaintiff purchased his premises he was so advised; (4) that the plaintiff conveyed away a portion of the premises to' which it was alleged the covenant was appurtenant, but in' the conveyance expressly reserved the benefits of the covenant and the right to enforce the same; (5) that the plaintiff is entitled to have the performance of said covenant and to enjoy the advantages therefrom.

The object of a complaint is to inform the defendant and to lay before the court the grounds upon which plaintiff claims relief. Ordinarily the plaintiff need not state, and it cannot be determined from the pleading itself, in what manner the plaintiff expects to prove the allegations made. In passing upon the complaint it is usual to assume that the plaintiff will be prepared by some proper proof to substantiate the allegations made. The court should, therefore, be careful in striking from a complaint allegations alleged to he redundant, unless it fully appears that in every reasonable aspect of the case such allegations can have no place in the pleading. If the plaintiff can prove that the covenant was made for the purpose of conferring a benefit upon his property, and in order to make it more valuable in the grain business which was carried on on said premises, and that it was understood and intended by the parties to be a covenant running with the land for the benefit of said premises and business, it cannot be said here that such proof would be without effect, and we cannot assume that he cannot in a proper manner make such proof. These allegations *350should, therefore, stand so that the plaintiff may have the benefit of such proper proof if he is able to make it. It is quite immaterial whether or not the plaintiff was advised when he purchased the property from .Collins that the covenant ran with the land, and it was n'ot error to strike .that allegation from the complaint. The covenant was made to Edward and Le Roy Collins, grantors in the deed, conveying the right of way, and they afterwards conveyed the premises across which the right of way was granted to the plaintiff. If the plaintiff has a cause of action, it is because the covenant ran with the land and survives that conveyance. It was necessary for plaintiff to connect himself with the covenant, and if he does not own all the premises benefited by it, it was proper if not necessary for him to show what part of the premises he owns and that the covenant was not extinguished by the conveyance from him of a part of the premises. It was, therefore, proper to allege that he had in fact conveyed a part of the premises intended to be benefited, but by the conveyance had expressly sought to reserve the benefit of the covenant to himself. What effect this attempted reservation may have is not for determination here, but the conveyance is a part of the history of the plaintiff’s interest and may be alleged. Apparently the plaintiff’s description of the premises is sufficient, and he should not ■ be required to amend it in that respect.

The order appealed from is, therefore, modified by striking therefrom the first, second, fourth and fifth numbered provisions thereof, and as so amended affirmed,- without costs.

All concurred.

Order appealed from modified by striking therefrom the first, ' second, fourth and-fifth provisions thereof, and as so'modified ■ affirmed, without, costs.