dissent">Ingraham, J. (dissenting):

Prior to the year 1887 the defendant and one Dumond were the owners as tenants in common of two lots of land on the south side of Seventy-second street, between Eighth and Ninth avenues, known respectively as lots Nos. 34 and 36. Lot No. 32, adjoining No. 34, was owned by the defendant who erected thereon a dwelling house. In building the house upon lot No. 32 the stoop extended six inches to the west of the westerly line of that lot, so that there was an encroachment of six inches upon lot No. 34: On the 12th of November, 1887, while lot No. 34 was held by Howard and Dumond as tenants in common, Howard conveyed lot No. 32 with the building thereon to his wife, Haretta W. Howard, and she thereby became the owner of lot No. 32 with the building thereon, a part of which was the stoop which encroached upon lot No. 34. Subsequently, on the 14th of Hay, 1889, Dumond conveyed to Howard his undi*198vided interest in lot Ho. 34 by metes and bounds, which included the strip of land'upon which the stoop of lot Ho. 32 encroached, which conveyance contained the usual covenants against incumbrances and further assurance, and a warranty. On the 23d of April, 1890, Maretta W. Howard conveyed to one Boskowitz lot Ho. 32 with the building thereon, the conveyance containing the usual covenants of quiet enjoyment, further assurances and against incumbrances and a warranty, the defendant joining in the deed as the husband of Maretta W. Howard, but not joining in the covenants. Subsequently, on the 31st of March, 1892, Howard and wife conveyed lot Ho. 34 to the plaintiff, the conveyance containing the same covenants by the defendant Howard. Upon the plaintiff commencing to build upon lot Ho. .34, this encroachment was discovered, whereupon, after an ineffectual negotiation with the owner of the house and lot Ho. 32 for the right to remove the encroachment, he proceeded to remove it. Boskowitz, the owner of lot Ho. 32, thereupon commenced an action against Farley, the grantee of lot Ho. 34, claiming that he had an easement of support for his stoop for which lot Ho. 34 was subject, and asking for an injunction restraining Farley from removing the encroachment. An injunction was granted, ex gcvrte, which, upon motion, was vacated upon Farley’s giving a bond conditioned for the payment of any damages in case the action was eventually decided against him. Farley answered, denying the existence of the incumbrance, and upon the case coming on for trial, a settlement was arrived at by which the plaintiff in that action, upon Farley’s paying $150 and agreeing to alter the stoop of lot Ho. 32 so as to rebuild the same upon the proper line, consented that a judgment be entered dismissing the complaint and adjudging that Farley, the plaintiff in this action, was the owner of the land described in his deed from the defendant Howard. The plaintiff subsequently commenced this action to recover the amount which he was compelled to pay to the owner of lot Ho. 32, including the expenses of defending that action, claiming that there was a violation of the covenant against incumbrances. Upon the trial of this action the complaint was dismissed.

Upon this appeal the sole question is whether the covenant in the deed from the plaintiff to the defendant of lot Ho. 34 was violated; and this depends upon the existence of an easement to support this *199stoop which was an incumbrance upon the land conveyed to the plaintiff.

It seems to me that no easement was created, to which the plaintiff’s lot was subject, by the conveyance from the defendant Howard to- his wife. Howard at that time was the owner in fee of lot Ho. 32. He was also the owner of an undivided moiety of lot H o. 34 as tenant in common. If he had been the owner of the entire title of both lots in fee, then undoubtedly as easement would have been implied from his grant, under the principle established in Lampman v. Milks (21 N. Y. 505). Howard’s interest in lot Ho. 34, at the time he made his conveyance to his wife, was that of a tenant in common, owning but an undivided half of it. It is well settled that a tenant in common cannot, even by express grant, create an easement in premises of which he owns no more than a right held in common with others. Hor can a tenant in common of property, who owns other property in severalty, so use the last as to acquire or exercise for the benefit of his premises owned in severalty an easement in the property held in common. He cannot by grant, or by operation of an estoppel, or otherwise, confer upon another rights and privileges which he did not have himself. (Crippen v. Morss, 49 N. Y. 68; Palmer v. Palmer, 150 id. 139.) On the 14th of Hay, 1889, however, Dumond, who was the tenant in common with Howard of lot Ho. 34, conveyed his undivided interest in that lot to Howard, so that Howard became the sole owner of the lot, and he then could, either by express or implied grant, charge lot Ho. 34 with an easement in favor of the owners of adjoining property. Being thus the sole owner of lot Ho. 34, he joined with his wife in a deed of lot Ho. 32, whereby the parties of the first part (Maretta W. Howard, wife of Frederick S. Howard, and the said Frederick S. Howard, her husband) conveyed lot Ho. 32, with the building thereon erected, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining. By this conveyance undoubtedly the defendant Howard transferred to the purchaser all of his interest, whatever it was, in the premises in question, including any interest in the adjoining property necessary, to support or maintain the buildings upon the property conveyed. The effect of that deed of Howard was not restricted to a mere transfer or release of his inchoate *200tenancy by the curtesy, but generally granted and conveyed all his right, title and interest in and to the premises; and as Howard was then the owner of lot Ho. 34, I think there was an implied easement of support to the stoop of lot 32 as it encroached upon lot 34.- There was, therefore, an incumbrance existing upon lot 34 when Howard conveyed it to the plaintiff; and Howard’s covenant against incumbrances in that, deed was thus broken, and I can see no reason why the plaintiff is not entitled to recover the damages that he sustained in consequences of a breach of that covenant.

The owner of lot Ho. 32 then commenced an action against the plaintiff to enforce this covenant; and the only remaining question is whether or not the judgment that was entered in that action is an adjudication that he was the owner of the property conveyed to him, free from incumbrances, and binding upon the plaintiff in this action. That 'judgment is not an adjudication binding Upon the plaintiff. The defendant was not a party to the action, and, so far as appears, he had no notice of it and took no part in its defense. It would not be binding as an adjudication in his favor, and it cannot be as against him. Hor does the judgment adjudge that this land was not, at the time of the conveyance by the plaintiff to the defendant, subject to an easement which was an incumbrance upon the land. The judgment is that the complaint be dismissed on the merits — that is, that no equitable relief be granted — and that the defendant is the owner in fee of the premises described in a deed from the defendant' to the plaintiff. Boskowitz, the plaintiff in that action, so far as appears, never disputed the title of the defendant to lot'Ho. 34. On the contrary he alleged that the defendant was the owner of the fee of that land, but that such fee was subject tp an easement by which the westerly wall of the stoop on lot Ho. 32 was entitled to support upon six inches of lot Ho. 34. There is nothing inconsistent in this judgment with a finding that lot 34 was subject to the easement, or that at the time of the conveyance of lot 34 by the defendant to the plaintiff, the covenant against incumbrances was not' broken. The very judgment itself recites that it was entered in consequence of a settlement between the parties, by which the defendant agreed to restore the stoop upon the line of the plaintiff’s lot, and to pay the sum of $125. Certainly, if the plain*201tiff here had obtained from the owner of lot 32 a release of the easement by the payment of this sum of $125, and the expense of restoring the stoop, it could not be said that because such a conveyance or release had been obtained and the title of the plaintiff to lot Ho. 34 had been made perfect by a discharge of the easement, there had not been a violation of the covenant in the defendant’s deed to the plaintiff as to incumbrances upon lot Ho. 34; and yet this judgment does no more than to carry into effect the settlement that was recited in it, by virtue of which the plaintiff obtained an adjudication that he was the owner of that lot, and as a consideration of obtaining that adjudication that he was the owner of the lot at the time the judgment was entered, had paid to the person claiming the incumbrance- a sum of money.

It seems to me, therefore, that the plaintiff was entitled to recover in this action the damages which he had sustained in consequence of this incumbrance, the existence of which was a breach of the covenants against incumbrances. As beforé stated, there is nothing in that judgment which could be construed as an adjudication that an incumbrance did not exist at the time of the conveyance from the defendant tp the plaintiff; and the proof clearly shows that such an incumbrance did exist.

I think the judgment should be reversed.

O’Brien, J., concurred.

Judgment affirmed, with costs.

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