On August 10, 1870, James Lenox conveyed a plot of land, 102 feet 2 inches On Madison avenue by 195 feet on Seventy-third street, to one William Lalor by á deed containing the familiar covenant against nuisances, to. which was supera'dded a clause to the effect that the grantee “ will use or suffer the said'premises! to be. used for the erection of first-class private residences only.”
It does not appear in this action that Lenox owned any other real property in' the neighborhood. The lots now owned by. plaintiff and defendant respectively .are both comprised within the plot thus conveyed, and the question at issue is whether the restriction above recited still obtains against one of the lots included in said plot so that it may be enforced by the owner of another lot also so included. . . ■
In 1870 Lalor conveyed a one-third interest in said plot to James H. .Coleman by a deed containing no covenants except one against the grantor’s own acts, and containing no reference to the- covenants ' in the deed from Lenox to Lalor. ■ .
On July 1, 1871, Lalor and Coleman Conveyed the whole, plot to James E.-Coburn-by a full covenant,warranty deed which contained the following clause-: ' Subject to the covenants, conditions and restrictions against nuisances and, buildings contained in deed of James Lenox of the above described premises,” Simultaneously *403with the execution of this deed, Coburn executed eleven separate mortgages to the North American Life Insurance Company, each mortgage covering a separate lot, and the eleven lots taken together . comprising the whole plot theretofore conveyed by Lenox to Lalor. These mortgages contained ho reference whatever to the restrictive covenant contained in the deed from Lenox.
Coburn, who was a builder, proceeded to erect houses on the several lots, and conveyed the same to different parties. In 1879, when the mortgages to the North American Life Insurance Com- - pany were foreclosed, the property now owned.by plaintiff was owned by one Mary H. Moore, and the property owned by defendant • was owned by one Artemas H. Holmes, the said Moore and. Holmes' " holding title under conveyances made to them or their predecessors in title by Coburn subsequent to the execution of the mortgages to the life insurance company and subject' thereto. It does not appear that any of these conveyances referred in any way to the restrictive covenants in the deed from Lenox to Lalor.i
In 1879 the mortgages held by the North American Life Insurance Company were foreclosed, and the lot now owned by plaintiff was conveyed by the referee to the said Mary H. Moore, then the ownér of the equity.of redemption thereof, and the lot now owned by deféndant was conveyed by said referee to Artemas H. Holmes, then the owner of the equity of redemption thereof. The -referee’s deed contained no reference whatever to any restrictions upon the property, or to any restrictive covenants contained in the deed from Lenox to Lalor.
It is a well-established rule of law respecting easements that a merger of titles to" the dominant and servient estates operates to extinguish the easement, as must necessarily be the case, and while such a restriction, as Lenox undertook to impose upon "the land which he conveydS. to Lalor is not, perhaps, technically an easement, it is closely analogous thereto and is frequently termed, a negative easement. Consequently it seems to be clear that Lalor held the plot conveyed to him free from any reciprocal rights or restrictions . in favor of any part of that plot as against any other. "What right Lenox may have reserved in behalf of other property owned by him, if there was any,, not included in the plot to Lalor, it is not necessary to consider.. Lalor, therefore, had the right- to deal with *404the property as hé saw fit.- If.when he. came to convey it, he saw fit to impose restrictions upon its use,' he could do so; or he could convey the property free from restrictions so far as. concerned the rights of One part of the plot against any other part. If fie- did place any restrictions upon it, it would " be because he created them or elected to continue those "prescribed by Lenox, not because his grantor had attempted to do so. (Lewis v. Ely, 100 App. Div. 252.) It is at least doubtful whether he did impose any restrictions lipón the property by his deed" to Coburn. That was what is-known as a full warranty "deed, and if, as may have - been the case, Lenox actually owned other property, for the benefit of which hé' had created the restrictions, Lalor could not safely warrant his own title to the plot he-was about to convey, unless he excepted in some way from his warranty the restrictive covenant embraced in the deed by which hé had acquired the property. He, therefore, conveyed the property “subject to” the Lenox restrictions. The -insertion of this' clause in the deed to Coburn did not, however, necessarily amount'.to the reimposition of the restrictions upon the property, of imply an agféément on Coburn’s part that he would observé the covenant. (Belmont v. Coman, 22 N. Y. 438 ; Dingeldein v. Third Ave. R.R. Co.,.37 id. 575, 577.) However this may be, when Coburn became the-owner of the entire tract he in turn was at liberty to deal with it as he saw fit, and when he came to divide the property up, and' convey it to separate purchasers,, as he did, he ■ could have established or continued reciprocal restrictions upon each lot in favor of. every other, if he had seen fit" to do so, but he did not. The extent of the rule upon which the plaintiff's claim rests is that, when a plot of land belonging to a single owner is divided into lots which are sold to different purchasers by deeds containing identical "or similaf restrictions, the ■■ inference and presumption is that " the ..'restrictions are -intended for the commpn benefit of all the purchasers, and each will be permitted to enforce it against the others.' . .TheSé ' reciprocal rights, howéVer, arise only ■when the property is-divided up and sold to different purchasers, " • and that never occurred in the case at bar until Coburn conveyed the property first by mortgage and then by deed, and neither by the mortgages nor by tbe deeds did-lie attempt to impose or continue any restrictions upon the property. Both plaintiff and .defendant *405trace their titles back to Coburn as their common grantor, and since he did not impose reciprocal restrictions upon the property, there are none that they can enforce as between themselves. It will not do to say that Coburn must be eliminated from the chain of title because the mortgages which he gave, and which were afterwards foreclosed, and through which the parties hereto trace their titles, were purchase-money mortgages. It is sometimes said that because the deed from the vendor and the mortgage from the vendee are parts of one and the same transaction, the title to the land does not for a moment rest in the vendee, but merely passes through him and vests in the mortgagee without stopping beneficially in the vendee. This statement of the law, however, does not go so far as' to say that no title whatever vests in the vendee, or that subsequent purchasers on the mortgage foreclosure do not derive their title from him, but merely that he does not hold the title beneficially, so as to permit the attachment, in precedence of the mortgage, of judgments, mechanics’ liens and other claims to which ordinary mortgages would in general be postponed.
We are, therefore, of the opinion that as between the several owners of lots embraced in the plot above described no restrictive covenants attach.
The judgment should, therefore, be reversed and the complaint dismissed, with costs in this court and the court below.
McLaughlin and Houghton, JJ., concurred ; Patterson, P. J., and Lambert, J., dissented,