¶1I cannot distinguish this case from Scott v. McMillan (8 Daly 320; 76 N. Y. 141). I do not think the rights of the parties are at all changed by calling this an action for trespass. There has been no trespass, however. The agreement is very loosely drawn, and it purports to bind Woodruff, his heirs and assigns, for the acts of Woodruff only. There is no clause in the agreement that binds or purports to bind the grantees of Woodruff to pay for the wall if they should use it. The words are, “The party of the second part (Woodruff) for himself, his heirs and assigns, agrees with Frost, Ms heirs and assigns, that when he (Woodruff) shall use the wall as a party wall or any part of it in any manner, he (Woodruff) will pay to Frost, his heirs and assigns, $350.”
¶2The cases of Cole v. Hughes (54 N. Y. 444) and Scott v. McMillan (supra) show that rvhen McMillan, a remote grantee of Woodruff, used the wall which he found upon his own land, he did not become bound to pay the amount that Woodruff had agreed to pay. McMillan was not liar ble upon any covenant, express or implied. Nor was he a trespasser in making use of his own land and its appurtenances, even though he knew that the person entitled to be *144paid for the building of those appurtenances had not been paid.
¶3Under the laws of the State of New York, as expounded by our highest court, McMillan is entitled to judgment in his favor.
¶4Charles P. Daly. Ch. J., and Larremore, J., concurred.
¶5Judgment for defendant.