(dissenting in part). Insofar as this action is one against Dora Ettinger, who is the original covenantor agreeing to supply heat, we need not now decide whether the covenant runs with her land. The plaintiff, as grantee of the store property, would seem to have the right to enforce the agreement as a personal covenant. This right would not rest merely on its privity with the former owner of the store property, but because plaintiff took its land “ subject ” to the covenant. As the agreement confers a benefit upon the plaintiff’s property, the “ subject ” clause would seem to be equivalent to an assignment (Bacon v. Grossman, 71 App. Div. 574). Plaintiff, in possession of the store property, has adopted the covenant, which clearly was made for its benefit, and whether it touches on or concerns defendant’s land or not, plaintiff would seem to have the right to enforce it (Restatement, Property, § 537, comment e).
The question of whether a covenant of this nature runs with the land presents many problems, which we need not decide now. There is a question as to whether it touches or concerns the land (see Neponsit Property Owners’ Assn. v. Emigrant Ind. Sav. Bank, 278 N. Y. 248). In the case cited the agreement to pay a fixed annual charge was for the benefit of all land in the area, including the defendant’s. Here it is to be noted that the covenant does not concern the use of the Ettinger land as such, but is one to furnish an accessory to plaintiff’s use of its land. For this the owner of defendant’s land was to receive a fixed number of dollars not for some use of or control over defendant’s land, but for heat — a personal property or service. To illustrate, I see no reason why the present covenant could not be fulfilled by delivery of heat from a source other than the adjoining land, for instance, by delivery from a utility company’s line in the street. We have heretofore held that a *383similar covenant was personal in nature (Zemel v. 1016 Corp., 277 App. Div. 1098). The present covenant is affirmative in nature and grants no easement (cf. Miller v. Clary, 210 N. Y. 127, supra). It might impose such a restriction on alienability to make its enforcement as one running with the land against public policy.
But, as noted, these matters are not required to be decided at this time. There is, however, a present question as to whether the covenant may be enforced in equity, or whether an adequate remedy at law exists. This it seems to me should await trial. There are many equitable considerations which may affect that question, such as the comparative burden placed on the parties, possible inequality of provisions of the covenant as to duration, the feasibility of erecting a heating plant in the stores, etc. These can best be resolved upon the trial.
The complaint would seem sufficient as to Dora Ettinger. Therefore, I vote to affirm as to her.
As to Max Ettinger, I vote to reverse the order appealed from and to dismiss the complaint. The only allegation against him is that he advised his wife not to deliver the heat. As the agent for a disclosed principal, he would not seem liable on the basis of the present complaint. This defendant did not make the covenant sought to be enforced herein, and he is not a proper party even in equity.
Bbeitel and Botein, JJ., concur with Dobe, J. P.; Callahan, J., dissents in part in opinion in which Beegan, J., concurs.
Order affirmed, with $20 costs and disbursements to the respondent. [See post, p. 871.]