119 N.Y.S. 444 | N.Y. App. Div. | 1909
Although the allegations of the complaint are somewhat vague and indefinite, we think that it maybe fairly inferred that the parcel of ground owned by the plaintiff Mary E. Beckwith, and that owned by the defendant Barbara Pirung, were each within the boundaries of Ditmas Park, and included in the general plan for the itnprovment thereof. Each of the deeds of lots within the said park, including those through which these parties claim title, contained restrictive covenants, substantially similar in form, except that in some it was provided that the cost of the dwelling house to be erected on the property therein described should be not less than $5,000, and in others that such cost should be not less than $4,000. The property owned by the plaintiff Beckwith belonged to the latter, and that owned by the defendant Pirung to the former class. This covenant provided as follows (¶ 1): “ That neither the said party of the second part, nor his heirs or assigns, shall or will erect or permit upon any portion of the said premises, any building except a detached dwelling house or church, and that said house shall be constructed for one family only, shall have a cellar and shall be not less than two stories in height, shall cost not less than Four (or Five) Thousand Dollars, and-shall not have a roof of the character or description known as a flat roof.” The covenant then contained other provisions relative to the size of the plot upon which a dwelling might be erected, prohibiting the use of the same for business or manufacturing purposes, providing as to the manner of inclosure, the position of the' building with reference to the street, the grade of the plot upon which the building stood, and the approach thereto. Then followed another clause in these words
We think that the judgment appealed from should be affirmed, with costs.
Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred.
Judgment affirmed, with costs.