On rule to show cause why venue should not be changed.
For the defendant, J. Emil Walscheid.
For the plaintiffs, Wall, Haight, Carey & Hartpence (William W. Shaw).
Before Justices Trenchard, Bodine and Heher.
[117 NJL Page 534] BODINE, J. The complaint alleges that the Bergen Turnpike Company many years ago constructed and thereafter maintained and operated a turnpike in the county of Hudson. Subsequently, a railroad was constructed across the turnpike
in that part of Hudson county, now North Bergen. Thereafter the Turnpike and Railway Company entered into an agreement whereby the Turnpike Company agreed to sell and convey to the Railway Company the right to construct its railroad under the turnpike, the railroad to construct a permanent iron bridge on the turnpike over the railroad, which bridge was to be maintained perpetually by the railroad. The rights of the railroad at last became vested in the plaintiffs, the West Shore Railroad Company as owner and the New York Central Railroad as lessee. Later, the Turnpike Company and the plaintiffs entered into an agreement, whereby it was agreed to strengthen the easterly half of the bridge, so that it might carry street cars to be operated by the Turnpike Company, the cost of the maintenance and repairs being borne one-half by the railroad companies and one-half by the Turnpike Company. Later, the Turnpike Company and the Public Service Railway Company then interested in the street car property conveyed to the county of Hudson the turnpike road as and for a free public road, the deed providing that the county should assume the obligations to control and care for the road as other county roads are controlled and cared for.
The complaint then alleges that the county of Hudson, under its deed, assumed and agreed to perform the obligations of the Turnpike Company under the various agreements pleaded and referred to. The plaintiffs' contention is that the obligations of the Turnpike Company passed by the deed to the county. Plaintiff, having recently had some expenses for repairs to the easterly side of the bridge, now seeks to recover one-half of the cost thereof.
The precise pertinent language of the complaint is as follows: "The covenant contained in the aforesaid agreement dated June 10th, 1902, whereby it was provided that the expense of repairing and maintaining the easterly half of said bridge should be borne one-half by defendant The Bergen Turnpike Company, and the other half by said railroad companies, was a covenant running with the land, and passed by the deed aforesaid from the defendant Bergen Turnpike Company and Public Service Railway Company, to the defendant
county of Hudson and said county of Hudson, by the acceptance of said deed, assumed and agreed to perform the obligations of said covenant."
The venue is laid in Essex county, the contention of the complainant being that the action is transitory. The county of Hudson seeking the removal contends that the action is local (under section 201 of the Practice act of 1903, Comp. Stat., p. 4113, not repealed by the Practice act of 1912), and that the venue must be laid in Hudson county.
"At common law an action on a covenant concerning land as of warranty was transitory if between the original parties thereto, as in that case the cause of action is founded on privity of contract. But if brought by an assignee of the original covenantee, the action was local. In covenants concerning land, an assignee of the land is a stranger to the personal contract between the parties thereto; he is not privy to it; and the only right he has to maintain an action in his own name for their breach is upon those covenants which 'run with the land,' or in other words, those which follow the interest demised; and hence the action is said to be founded upon privity of estate. The rule in this regard, however, is sometimes changed by statute." 27 R.C.L., § 14, p. 793.
"This case cannot be distinguished from that of Lienow v. Ellis, 6 Mass. 331, where it was decided that an action of covenant concerning land, brought by the assignee of the covenantee against the covenantor, was local, and could be maintained only in the county where the land was situate. The same point was decided in the same way in White v. Sanborn, 6 N.H. 220, and Birney v. Haim, Littell, 262. There is no privity of contract between the plaintiff and the defendants, but merely a privity of estate; and when an action is founded on privity of estate only, it is local, as is shown not only by the above cited cases, but by numerous other books. 1 Tidd's Pract. (1 st ...