MUNICIPAL CORPORATIONS. (GOVERNMENTAL FUNCTIONS—ESTABLISHMENT OF PESTHOUSE— NEGLIGENT CARE OF PATIENTS—CIVIL LIA BILITY.) KENTUCKY COURT OF APPEALS.
In Twyman's Adm'r v. Board of Councilmen of Frankfort, 78 Southwestern Re porter 446, it is held that the action of a city, pursuant to an authority given it to estab lish hospitals and make all necessary regula tions for the protection of public health, in establishing a pesthouse and in removing thereto a person afflicted with smallpox and in caring for him there until he died, was per formed by the city in its public or govern mental capacity as an agency of the State, and not in its corporate and private capacity, and hence that it was not liable for negli gence in the performance thereof. The dis tinction between the two classes of municipal functions is discussed at some length and the cases of Clayton v. Henderson, 44 South western Reporter 667, 44 L. R. A. 474; Paducah v. Allen, 63- Southwestern Reporter 981 and McGraw т. Marion, 98 Ky. 673, 34 Southwestern Reporter 18, 47 L. R. A. 593 are distinguished. It is finally held that Ky. St. 1903, Sec. 6, conferring a right of action for death inflicted by negligence or wrong ful act, does not give such right of action against a municipal corporation for the death of a person occurring as the result of an -act- done in the performance of a duty which the municipality owed to the public, and in the doing of which it had but exer cised a governmental power. PARTY WALLS. (EFFECT OF COVENANTS AS то OWNERSHIP.) NEW YORK SUPREME COURT, APPEL LATE Dn'isioN, FIRST DEPARTMENT.
In the case of Schwenker v. Picken, 86 New York Supplement 681, the question was raised as to the effect of an agreement made by adjoining lot owners whereby one was to build a wall equally upon the land of each at his own expense, and the other was to have the privilege of using the same upon the payment of $500. The agreement further provided that it should be binding upon the heirs, executors and assigns of the
parties, and should be construed as a coven ant running with the land. After the wall was built both parties disposed of their prop erty. When the wall was about to be used by one of the purchasers, the question arose as to whom payment therefor should be made. The court says that, under the con tract under which the wall was built, the party of the first part became entitled to re ceive from the party of the second part the sum agreed upon when the party of the sec ond part, or his assigns, erected a building upon the premises which made use of the wall. There is no allegation in the complaint that that right has been assigned to the purchaser. ' He acquires his right solely as the grantee of the property owned by the party to the agreement who built the wall. Whatever may be said to be the effect of the covenant as to the use of the party wall by the party of the second part, or his assigns. the right to receive payment was a right personal to the party of the first part. The court depends upon the case of Cole v. Hughes, 54 N. Y. 444. in which it was said: "The first question to be determined is whether the right to compensation is in the plaintiff or in the owner of the wall. It is claimed that it passed to the grantee of the lot on the ground that the covenant to pay ran with the land. When the conveyance was made. D. conveyed all his interest in the lot, and, as appertinent thereto, in the party wall. For this interest the grantee paid, and he got all he paid for. There is no reason in equity why he should also receive payment for some portion of the cost of building the party wall. The money to be paid was not for anything which had been done upon D's lot, but for something which had been done noon the other lot, and it no more passed to D's grantee than it would if he had built a house upon the other lot, using the party wall, and the other party had agreed to pay him whenever he or his heirs or assigns should occupy it." It is held, therefore, that the payment is due to the partv to the agree ment, and not to the grantee of the lot. The court is also supported in this holding by the case of Sebakl r. Mulholland, 155 N. Y. 455. 50 X. E. 260.
