Misc.] Supreme Court, June, 1918. mons without the state by a sheriff, and not referring to deputy sheriffs, does not authorize a deputy sheriff to make service. My conclusion that subdivision 5 of section 443 in using the term "United States marshal" did not intend to embrace a deputy marshal is strengthened by the fact that where authority is given by the same subdivision for service by a sheriff, the words" under sheriff " and " deputy sheriff" are added. From this fact I think it is fair to infer that where the legislature intended to extend the authority conferred upon an official in this subdivision to a deputy or assistant the appropriate words are employed. The plaintiff claims that Cohnfeld v. Bliss, 174 App. Div. 434, is authority for service by a deputy United States marshal. I can find nothing in the opinion to support such contention. On the contrary, the court said: "Where the mode of service of process outside the State is prescribed by statute. it must be strictly followed. Any other method, though it may seem just as good, will not answer." In the case just cited the court did not discuss and had no occasion to discuss the question whether service by a deputy United States marshal would be good under the subdivision referred to as it stands since the amendment of 1916, because at the time the service under consideration in that case was made the amendment referred to was not yet in effect. I am therefore of the opinion that so far as the motion seeks to vacate the service made by the United States deputy marshal it should be granted. The conclusion I have reached on the points above discussed renders it unnecessary to determine the future point debated in the briefs as to whether or not the defendant has appeared generally in the action by procuring the discharge of the attachment by giving an undertaking under the provisions of sections 687 and 688 of the Supreme Court, June, 1918. [Vol. 104. Code of Civil Procedure. The facts relating to the procuring of the discharge of the attachment are peculiar. The order procuring the discharge was granted on a motion of the attorney for the defendant" appearing specially solely for the purpose of obtaining this order." Subsequently a conversation was held between the attorneys on either side, the attorney for the plaintiffs claiming that they were entitled to a general appearance as a result of that order having been obtained and that they would move to resettle the order unless the defendant appeared generally. The defendant's attorney replied that the defendant had only appeared specially and had followed the usual practice in obtaining this order in question on a special appearance. Thereafter, instead of making a motion to resettle the order, the plaintiffs' attorney obtained an order for the service of the summons by publication or without the state. Under these circumstances, for the purposes of the present motion, I think I should confine myself to the questions arising upon and relative to the order for publication or for service outside the state which the defendant's attorney procured, and against which, and the service made under it, this motion is specifically directed. The motion is therefore granted to the extent indicated, but in other respects denied, without costs. Ordered accordingly. Misc.] Supreme Court, June, 1918. CHARLES T. SAMMIS, Plaintiff, v. TOWN OF HUNTINGTON, Defendant. Lease (Supreme Court, Suffolk Special Term, June, 1918.) contracts - pleading — Town Law, § 170. A complaint alleged that in October, 1866, prior to the enactment of the Town Law, the trustees of the freeholders and commonalty of the town of Huntington, the defendant, leased to S. certain lands of which they were the owners in fee for a term of fifty years at a certain annual rental, with covenant for a renewal for a like term at such rent as might be agreed upon between the parties, and, in the event of disagreement as to the amount of rent, the town would take and pay for all buildings and erections upon the premises at a value to be assessed by parties to be chosen, etc. It was further alleged that the lease was duly assigned to plaintiff and that a part of the premises had been assigned by plaintiff to a third party; that prior to the expiration of the lease on October 1, 1916, the parties considered from time to time the price to be charged for a renewal of the lease but that they had failed to agree upon the rental value of the premises. Upon overruling a demurrer made upon the ground that the complaint, which was for the enforcement of the covenants, did not state facts sufficient to constitute a cause of action, held, that the part of the covenant relating to a renewal was practically nugatory and conferred no substantial right upon either party but the remaining part of said covenant was in effect an agreement to purchase the improvements and was binding upon the assignee of the lessor and the lessee; that the question whether the action should have been brought against the "trustees" and not against the town is not so purely a question of law that it can be decided upon demurrer without any evidence to sustain the same; that the covenant to take and pay for the improvements creates a charge or lien upon the property enforcible in equity. There is nothing in the Town Law which expressly prohibits the bringing of such an action as the present; the claim sought [Vol. 104. Supreme Court, June, 1918. to be enforced does not seem to come within the scope of the phrase "town charges generally," nor within the enumerated claims specified in section 170 of the Town Law. DEMURRER to complaint. Ackerly & Miles (Rowland Miles, of counsel), for plaintiff. Willard N. Baylis (Geo. P. Sanborn, of counsel), for defendant. ASPINALL, J. The question to be decided herein is whether or not the demurrer interposed by the defendant to the plaintiff's complaint, upon the ground that the same does not state facts sufficient to constitute a cause of action, should be sustained or overruled. The complaint in substance alleges that at all times referred to therein, prior to the passage of the Town Law, the trustees of the freeholders and commonalty of the town of Huntington were a municipal domestic corporation; that by virtue of the said Town Law, and the various amendments thereof, all the lands, rights and interests therein and all the rights and property of the said trustees were transferred to and became vested in the town of Huntington; that the said town is the successor to and is now the corporate name of said trustees of the freeholders and commonalty of said town; that on the 1st day of October, 1866, the said trustees were the owners in fee of certain lands and premises, and that on said day they leased the land described in said complaint to one Henry J. Scudder for the period of fifty years, at a rental of fifteen dollars per year; that the said lease contained a covenant for a renewal for the term of fifty years further, upon such rent as might be agreed upon between the parties, and in the event of a disagreement as to the amount of said rent the said town will take and pay for all build Mise.] Supreme Court, June, 1918. ings and erections upon said premises at a value to be assessed by parties to be chosen, etc. The complaint also alleges that on the 4th day of November, 1892, the said lease was duly assigned to the plaintiff, and that in April, 1895, the plaintiff assigned a part of the premises to the Northport Electric Light Company; that the said lease expired on the 1st day of October, 1916; that prior to the expiration of said lease the parties hereto took up and considered from time to time the price to be charged for a renewal of said lease, but that they have failed to agree upon the rental value of the premises, and this action is therefore brought for the relief prayed for in the complaint. The agreement to renew for a further period of fifty years at a rental to be agreed upon, and the agreement to take and pay for the improvements in the event of a disagreement as to the rental are contained in a single covenant. Since the act of agreeing upon the rental requires the exercise of a volition, unenforceable in law, the part of the covenant relating to a renewal is practically nugatory and confers no substantial right upon either party. But the remaining portion of the covenant is in effect an agreement to purchase the improvements. Although the phraseology is somewhat involved, the intent is plain that the covenant shall be binding upon the lessors named and also upon their successors, executors, administrators, heirs and assigns." As I read the covenant it expressly so provided. Expressions are found in the cases to the effect that such a covenant" runs with the land." Whether or not this phrase is applicable to such a covenant, I think it to be the law that such a covenant, relating to something not in esse but to be done upon the property, does not bind an assignee of the lessor or the lessee unless specifically named; but that by the use of the words "" successor " and "assignee" the assignee |