Rights arising out of obligation, transferable.

Non-negotiable instruments may be transferred.

Covenants running with land, what.

What covenants run

with land.

Same.

liable to the covenantee, notwithstanding that the land passes into other hands (House vs. Burr, 24 Barb., 525; Damb vs. Hoffman, 3 E. D. Smith, 361; Port vs. Jackson, 17 Johns., 239, 479; Jackson vs. Brownson, 7 id., 227). So, where one has agreed to perform a service, he cannot compel the other party to accept the service from a third person and to release him therefrom (Robson vs. Drummond, 2 B. & Ad., 303). It is not meant by this section to imply that a third person cannot assume the obligations of a contract between other parties, but only that he cannot relieve a party thereto from his obligations, without the consent of the creditor.

N. Y. C. C., Sec. 689.

SEC. 1458. A right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such.

N. Y. C. C., Sec. 690.

SEC. 1459. A non-negotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner with negotiable instruments. Such indorsement shall transfer all the rights of the assignor under the instrument to the assignee; subject to all equities and defences existing in favor of the maker at the time of the indorsement.

[New section.]

NOTE. This section supersedes the Act relative to bonds, due bills and other instruments in writing, passed April 20, 1850 (Stats. 1850, 332). The general provisions of this Code as to "Fraud," "Tender," "Diligence," "Failure of Consideration," etc., cover all the substantial requisites of this Act.

SEC. 1460. Certain covenants, contained in grants of estates in real property, are appurtenant to such estates, and pass with them, so as to bind the assigns of the covenantor, and to vest in the assigns of the covenantee, in the same manner as if they had personally entered into them. Such covenants are said to run with the land.

N. Y. C. C., Sec. 691.

SEC. 1461. The only covenants which run with the land are those specified in this Title, and those which are incidental thereto.

N. Y. C. C., Sec. 692.

SEC. 1462. Every covenant contained in a grant of an estate in real property, which is made for the direct benefit of the property, or some part of it then in existence, runs with the land.

N. Y. C. C., Sec. 693.

SEC. 1463. The last section includes covenants "of Same. warranty," "for quiet enjoyment," or for further assurance on the part of a grantor, and covenants for the payment of rent, or of taxes or assessments upon the land, on the part of a grantee.

N. Y. C. C., Sec. 694.

NOTE. The first three covenants mentioned in this section ought to follow the fate of the covenant of seisin, which was originally held to "run with the land," but now held to be a personal covenant. The two last covenants and those described in the next section are properly the only real covenants made for the direct benefit of the property.

Code Covenants are classed as personal covenants by Sec. 1116 of this Code. See, also, note to Sec. 1112 of this Code.

SEC. 1464. A covenant for the addition of some new thing to real property, or for the direct benefit of some part of the property not then in existence or annexed thereto, when contained in a grant of an estate in such property, and made by the covenantor expressly for his assigns or to the assigns of the covenantee, runs with land so far only as the assigns thus mentioned are concerned.

N. Y. C. C., Sec. 695.

What cove

nants run

with land

when assigns are named.

bound by covenants.

SEC. 1465. A covenant running with the land binds Who are those only who acquire the whole estate of the covenantor in some part of the property.

N. Y. C. C., Sec. 696.

SEC. 1466. No one, merely by reason of having ac- Who are not. quired an estate subject to a covenant running with the land, is liable for a breach of the covenant before he acquired the estate, or after he has parted with it or ceased to enjoy its benefits.

N. Y. C. C., Sec. 697.

ment of

SEC. 1467. Where several persons, holding by several Apportiontitles, are subject to the burden or entitled to the benefit covenants. of a covenant running with the land, it must be apportioned among them according to the value of the property subject to it held by them respectively, if such value can be ascertained, and if not, then according to their respective interests in point of quantity.

N. Y. C. C., Sec. 698.

TITLE IV.

EXTINCTION OF OBLIGATIONS.

CHAPTER I. PERFORMANCE.

II. OFFER OF PERFORMANCE.

III. PREVENTION OF PERFORMANCE OR OFFER.

IV. ACCORD AND SATISFACTION.

V. NOVATION.

VI. RELEASE.

Obligation

extinguished

ance..

CHAPTER I.

PERFORMANCE.

SECTION 1473. Obligation extinguished by performance.
1474. Performance by one of several joint debtors.
1475. Performance to one of joint creditors.

1476. Effect of directions by creditors.

1477. Partial performance.

1478. Payment, what.

1479. Application of general performance.

SEC. 1473. Full performance of an obligation, by the

by perform party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it.

Performance

by one of

N. Y. C. C., Sec. 699.

SEC. 1474. Performance of an obligation, by one of several joint several persons who are jointly liable under it, extinguishes the liability of all.

debtors.

Performance to one of joint cred. itors.

Effect of

directions by creditors

N. Y. C. C., Sec. 700.

SEC. 1475. An obligation in favor of several persons is extinguished by performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the Title on Deposit.

N. Y. C. C., Sec. 701.

SEC. 1476. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though

the creditor does not receive the benefit of such perform

ance.

N. Y. C. C., Sec. 702.

formance.

SEC. 1477. A partial performance of an indivisible obli- Partial pergation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it, without injuring his own property, his retention thereof is not presumed to be voluntary.

N. Y. C. C., Sec. 703.

SEC. 1478. Performance of an obligation for the deliv- Payment, ery of money only, is called payment.

N. Y. C. C., Sec. 704.

what.

of general performance

SEC. 1479. Where a debtor, under several obligations Application to another, does an act, by way of performance, which is equally applicable to two or more of such obligations, such performance is applied as follows:

1. If, at the time of performance, the intention or desire of the debtor that such performance should be applied to the extinction of any particular obligation, is manifested. to the creditor, it is so applied.

2. If no such application is then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of the debtor.

3. If neither party makes such application within the time prescribed herein, the performance is applied to the extinction of obligations in the following order; and, if there is more than one obligation of a particular class, to the extinction of all in that class, ratably :

(1.) Of an obligation due at the time of performance;

(2.) Of an obligation not voidable at the option of the debtor;

(3.) Of an obligation secured by a lien or collateral undertaking;

(4.) Of interest;

(5.) Of the obligation earliest in date of maturity; (6.) Of the obligation which it is most for the interest of the debtor to extinguish.

N. Y. C. C., Sec. 705.

Obligation extinguished by offer of performance

CHAPTER II.

OFFER OF PERFORMANCE.

SECTION 1485. Obligation extinguished by offer of performance.
1486. Offer of partial performance.

1487. By whom to be made.

1488. To whom to be made.

1489. Where offer may be made.

1490. When offer must be made.

1491. Same.

1492. Compensation after delay in performance.

1493. Offer to be made in good faith.

1494. Conditional offer.

1495. Ability and willingness essential.

1496. Production of thing to be delivered, not necessary.

1497. Thing offered, to be kept separate.

1498. Performance of condition precedent.

1499. Written receipts.

1500. Extinction of pecuniary obligation.

1501. Objections to mode of offer.

1502. Title to thing offered.

1503. Custody of thing offered.

1504. Effect of offer on accessories of obligation.

1505. Creditor's retention of thing which he refuses to accept.

SEC. 1485. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation.

This is the present law with respect to all obligations other than for the payment of money (Des Arts vs. Leggett, 16 N. Y., 582; Billings vs. Vanderbeck, 23 Barb., 546; Slingerland vs. Morse, 8 Johns., 474). It is not now the law as to pecuniary obligations, the debtor having no power to rid himself of the debt without the consent of the creditor (see Dixon vs. Clark, 5 C. B., 365, 377; Waistell vs. Atkinson, 3 Bing., 290; Kortwright vs. Cady, 23 Barb., 490; 21 N. Y., 343).

N. Y. C. C., Sec. 706.