(dissenting). With regard to the monthly installments due for the months from October 1, 1937, to February 23, 1938, when the Canadian Pacific Building was sold in foreclosure, we agree with the opinion of Mr. Justice Glennon that the judgment in the prior action (Irving Trust Co. v. Anahma Realty Corp., 281 N. Y. 798) is res judicata, and accordingly the order appealed from should be modified to the extent of granting judgment in plaintiffs’ favor against the defendant for the monthly installments due for the months from October 1, 1937, to February 23, 1938.
We cannot agree to go further and render judgment in plaintiffs’ favor for the full amount without a trial. That in effect is a determination subjecting defendant to a continuing liability until 1947, for the annual charges under the agreement when defendant has neither title to the building nor any of the benefits of the agreement, and when those having control of the corporate purchaser at the sale elected to continue the agreement and the purchaser in foreclosure will enjoy all the benefits thereof. This result should not be reached unless the court is so constrained after trial.
The agreement should not be construed by considering solely the one paragraph in which the covenant to pay is contained. (Clark v. Devoe, 124 N. Y. 120.) The restrictions imposed were expressly stated to be “ for the benefit of the said Canadian Pacific Building and all successive owners thereof and shall be regarded as appurtenant to said building subject to the obligations hereby imposed and as a real covenant running with the land * *
The light and air agreement was between the parties and their “ successors or assigns.” In the foreclosure proceedings appellants were deliberately omitted as parties defendant, and the rights under the agreement were thereby retained for the benefit of the Canadian Pacific Building, the trustee, the holders of the bonds, and subsequent purchasers. The judgment of foreclosure and sale decreed that the premises were specifically sold “ subject ” to the recorded light and air agreement. The purchaser at the time of delivery of the referee’s deed had full and actual knowledge of the existence of the recorded agreement and of its provisions, including the clauses that the restrictions were imposed for the benefit of the Canadian Pacific Building “ and all successive owners thereof and shall be regarded as appurtenant to said building;” and that unpaid sums “ shall be and become a charge against and *106as such shall attach to the said Canadian Pacific Building premises and shall remain a charge thereon until the same be paid.”
The construction of the entire contract should be left for the trial court after full disclosure of all facts and circumstances bearing on the intention of the parties. The purchaser on foreclosure having all the benefits of the agreement should be liable for the current payments, at least while in possession and enjoyment of such benefits. In substance if not in form there is privity of estate; such purchaser is a subsequent holder who took full notice of the covenant. ,( Neponsit Property Owners’ Assn. v. Emigrant Industrial Savings Bank, 278 N. Y. 248, 257, 262.)
The issues herein as to the period subsequent to February 23, 1938, were not judicially determined in the prior action as they depend in part upon events occurring after the entry of judgment in the prior action.
Accordingly, we dissent and vote for a modification as herein-above indicated.
Martin, P. J., concurs.
Order reversed, with twenty dollars costs and disbursements and motion granted.