The plaintiff concedes that the defendant’s liability would have been questionable if he had not entered upon the plaintiff's land and built thereupon *326half of a party-wall, which was nothing more than a prolongation of the party-wall which the plaintiff had constructed under the authority given him by Mrs. McMillan’s agreement. This does not fairly present the actual state of facts, for Mrs. McMillan had no power to authorize the building of the party-wall on the land of her children, and furthermore, the plaintiff had built the wall upon his own land in the exercise of his right of ownership, and not by permission of Mrs. McMillan. The defendant, when he broke and entered the plaintiff’s close, did not do so under the authority conferred by any of the provisions of that agreement. There is not a clause in the agreement which can be construed to warrant the taking by the defendant of any of the plaintiff’s land for the building of a party-wall. The fifth article of the agreement does, indeed, provide that if the party of the second part (Mrs. McMillan) should first build a dwelling-house on her lot, the plaintiff should assume and be bound to.pay one-half of the expenses incurred by her in building the party-wall in case he afterwards used it. The agreement was undoubtedly made in ignorance of the fact that Mrs. McMillan had no other interest in the land than her right of dower, and its effect was to confer a personal privilege and a personal right upon her. It did not authorize any one not in privity with her to enter upon the plaintiff’s land for the purpose of building a party-wall. Certainly the defendant could not have maintained an action upon the agreement against the plaintiff if the latter had refused to permit him to build a party-wall, though the plaintiff doubtless has a right of action against the defendant for entering upon his land and constructing a wall upon it. This action cannot, therefore, be supported upon the ground that the defendant knowingly and deliberately availed himself of a privilege conferred by the agreement of building on the plaintiff’s land an extension of the party-wall, and, therefore, having enjoyed the advantages, must bear the burdens growing out of the agreement. The case is that of a purchaser of land who is sued for a share of the cost of building a party-wall because a former owner or claimant of the land made a personal covenant *327to pay such share. It is directly within the principle of Cole v. Hughes, (54 N. Y. 444).
The plaintiff urges, moreover, that the defendant has assumed the obligation of paying for the party-wall because he took the land “ subject to the agreement ” between the plaintiff and Mrs. McMillan; and the case of Dingeldein v. The Third Avenue R. R. Co. (37 N. Y. 575) is cited as an authority in support of that position. That case seems to me to be an authority in favor of the opposite conclusion. The phrase u subject to the agreement ” is a mere recognition of the right of the plaintiff to have and maintain the party-wall upon the ¡and which the defendant was purchasing. The right to the ¿)arty-w.all was an easement possessed by the plaintiff in that land, if Mrs. McMillan’s agreement was sufficient to create it. The wall worked a diminution of the control of the defendant over his land, and, like any ordinary incumbrance, was mentioned in the deed. In the Dingeldein case, there was no incumbrance, and the words “ subject to the payment” (not subject to the agreement, as in the present action) would have been without meaning or effect, if they had not been construed to import an agreement to pay the claim they referred to.
The case of Hoffman v. Barry (2 Hun, 52) disposes of the objection as to the costs.
Charles P. Daly, Ch. J., concurred.
Order affirmed, with costs and disbursements.*
Affirmed by the Court of Appeals in 76 N. Y. 141.