67 N.Y.S. 535 | N.Y. Sup. Ct. | 1900
Prior to the date hereinafter mentioned one Thomas J. Robinson was the owner of a plot of ground on the southerly side of One Hundred and Twentieth street, distant 300 feet westerly from Fifth avenue and having a frontage on said street of 160 feet. On the 23d day of June, 1892, he sold and conveyed to Malvina Hammerstein the extreme westerly portion of said property, beginning 410 feet from Fifth avenue and extending westerly 50 feet. This deed of conveyance contained a covenant on the part of the grantee in the following words: “ And the party of the second part, by the acceptance of these presents, hereby covenants that she will not erect or permit to be erected oh any part of the aforesaid premises fronting on One Hundred and Twentieth street any building other than a private dwelling-house or houses, it being understood, however, that a private stable may be erected at a distance not less than sixty feet from the curb line and on the rear of the westerly twenty-five feet of the lots hereby conveyed.” The balance of the property owned by Robinson was subsequently sold by him in parcels from time to time, but without any restriction of any kind whatsoever with respect to their improvement or use. On February 8, 1897, Mrs. Hammerstein conveyed to one McGrann the easterly portion of the premises which she had acquired under the above-mentioned deed, having a frontage of twenty feet. On February 15, 1898, the latter conveyed the same property to one Kellar, who on July 28, 1898, in turn conveyed the same to the plaintiff in this action. In none of these deeds was any reference made to the restrictive covenant above mentioned, nor did any of them contain any covenant or agreement on the part of the grantee or the grantor respecting any such restriction. On March 3, 1898, the defendant acquired title to the remaining thirty feet of the Hammerstein parcel. Upon this parcel the defendant purposes to erect a first-class, fireproof apartment house, which is to be eight stories in height, and so constructed as to accommodate one family on each floor and the family of a janitor in the basement. The plans provide for an electric passenger elevator opening on each floor, there being on three sides of the interior of the elevator shaft a passageway, and a doorway opening into the respective apartments is to be through the wall on each story which faces the doorway of the elevator. The object of this action is to secure injunctive relief prohibiting the defendant from erecting such building on the ground that it is
Judgment for defendant, with costs.