TURNER v. WILLIAMS (1999)

In an action, inter alia, to enforce a restrictive covenant, the plaintiffs appeal from (1) so much of an order of the Supreme Court, Putnam County (Hickman, J.), dated January 26, 1998, as granted the defendants' cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered March 26, 1998, dismissing the complaint.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondents are awarded one bill of costs.

 The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1] ).

 Contrary to the plaintiffs' contention, the benefit of the restrictive covenant was not intended to run with the land (see, Westmoreland Assn. v. West Cutter Estates, Ltd., 174 A.D.2d 144, 579 N.Y.S.2d 413).   Instead, we are satisfied that the benefit was personal to the grantor since he failed to impose the restrictions at issue on any other conveyance (see, Pulitzer v. Campbell, 146 Misc. 700, 262 N.Y.S. 743), and subsequently cancelled the restrictions when he conveyed the last remaining portion of his retained land to the defendants (see, Graham v. Beermunder, 93 A.D.2d 254, 462 N.Y.S.2d 231).

MEMORANDUM BY THE COURT.