(dissenting):
While the record in this case is eértainly not what it ought to be, yet I think it is sufficient for the purposes of this appeal. The judgment roll shows that the case was, by consent of the plaintiff’s attorney, referred to a referee to hear and decide the same, and the referee’s report indicates that not only was a trial had before him, but it states explicitly what took place at that trial, and no question as to .the accuracy of such statement is raised .by either counsel. This being the case, it is apparent that upon the trial both the deed from the plaintiff to the defendants, William and Alice Nichols, and the agreement between the parties, entered into contemporaneously therewith, were received in evidence.
This deed, which is absolute in form, does not contain any provision for re-entry or forfeiture, nor does the contemporaneous agreement to which it refers ; and nothing appears in either instrument to warrant the inference that the estate conveyed was intended to depend upon the performance of a condition, either precedent or subsequent. Indeed, it seems to me quite clear that within well-settled rules the language of both instruments must be so construed as to import a covenant and not a condition (Graves v. Deterling, 120 N. Y. 447; Cunningham v. Parker, 146 id. 29), and if so, it necessarily follows, in view of the admission made by counsel in opening the case to the referee, that the plaintiff has mistaken her remedy.
I think.the judgment appealed from should be affirmed.
Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.