17 N.Y.S. 383 | The Superior Court of the City of New York and Buffalo | 1892
By a judgment of the court below the defendant was enjoined from erecting and maintaining structures in front of his premises in violation of a covenant agreement entered into by prior owners of this and adjacent property, reserving a space of eight feet in front of the street line. The questions of law involved in this case, and requiring consideration for its proper determination, were all substantially decided by a former general term of this court on an appeal from the0order vacating the injunction granted at the inception of the action. See Bradley v. Walker, opinion by McAdam, J., 14 N. Y. Supp. 315. In the above-mentioned opinion, the question of the defendant’s notice of the agreement is not fully discussed; and the claim of his learned counsel that, on the former appeal, it was assumed that the defendant purchased the premises with notice, is not without foundation. We now propose to discuss this question, and also give attention to the alleged error in granting plaintiff an allowance of $250. We hold the former general term opinion to be decisive of all other material matters herein. Whoever purchases real estate with notice of any equity attaching to it buys subject to that equity. He must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor. Bradley v. Walker, supra, and authorities there cited. The notice may be implied from circumstances. In Talmmadge v. Bank, 2 Duer, 614, affirmed 26 N. Y. 105, the court held “ that the uniformity of the position of all the houses on St. Mark’s place was probably sufficient, alone, to put the defendant on inquiry.” See, also, Maxwell v. Bank, 3 Bosw. 124; Perkins v. Coddington, 4 Rob. (N. Y.) 647; Greene v. Creighton, 7 R. I. 1.
The house in question, and the adjoining houses in the same block, are actually set back eight feet from the line, and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is of itself a circumstance, that might well put the purchaser on inquiry. In Talmmadge v. Bank, supra, the notice was not wholly
If it is held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, on account of her defective acknowledgment, inasmuch as it was properly recorded as to the other parties to the agreement, the defendant could not in law see a part without the whole, and he would thereby have actual notice through his attorney, who searched the title. See 2 Pom. Eq. Jur. pp. 16, 17, 92.
With regard to the granting of an extra allowance of $250, we think the court below fell into error. Subdivision 2 of section 3253 of the Code provides that an extra allowance may be given “in any other case” (other than an action to foreclose a mortgage) “specified in this section, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.” In the case at bar, there is no evidence of the value of the subject-matter involved, and no sum recovered beyond the costs and extra allowance, while the amount claimed as damages is $1,000, 5 per centum of which would be less than the $250 granted as extra allowance by the court below. Thus, in any view of the case, the granting of the extra allowance of $250 was improper. Where the subject-matter involved is not-capable of a money value, or the value is not shown, an allowance is not authorized. See Conaughty v. Bank, 92 N. Y. 401; People v. Railroad, Co., 5 Lans. 25; Coates v. Goddard, 34 N. Y. Super Ct. 118; Munro v. Smith, (Sup.) 6 N. Y. Supp. 426. This error, however, is one that can be remedied without reversing the judgment, which in all other respects is fully warranted. We are of the opinion that the judgment must be modified by deducting therefrom the sum of $250, and as thus modified the judgment appealed from is affirmed, with costs.
