201 A.D. 726 | N.Y. App. Div. | 1922
The plaintiff, the owner of about ten blocks of land at Brighton by the Sea, developed the same by erecting thereon about 300
The covenant, interpreted in the light of the character and extent of the tract of land to which it was applied, was evidently exacted for the benefit and protection of contiguous or neighboring land which the owner retained. There was no uniform plan of development under beneficial restrictions, enforcible by any grantee as against any other. The provisions reserving to the grantor control over the restrictions prevented any mutuality of covenant and consideration between the grantees, and marked the covenant as being for the benefit of the grantor. It belongs to the second class of covenants mentioned by Judge Werner in Korn v. Campbell (192 N. Y. 490). There is no doubt that such a covenant is within the competency of the parties to the grant, but'the question is, whether a case is presented by the record in which an injunction pendente lite should issue.
The defendant Minnie Rivkin is the owner of property on East Fourth street, 100 feet from Brighton Beach avenue. The deeds to the property abutting on Brighton Beach avenue permit the use of such property for business purposes, and in several instances the plaintiff has made agreements with the owner of certain of the parcels waiving, limiting and modifying the restrictions thereon.
There is no evidence showing the relation of any property still owned by the plaintiff, or upon which the plaintiff holds mortgages, to the property owned by the defendant.
The right to a decree of specific performance of a covenant of real property rests in the discretion of a court of equity. (Trustees of Columbia College v. Thacker, 87 N. Y. 311.) In the case before us the plaintiff reserved the right, not only to grant any portion of the land free from the covenants and restrictions, but to make any
There is nothing in the record to show any special injury to the plaintiff from the use of defendant’s property for a real estate brokerage office. . There is nothing even which shows the relation-of the property still owned by the plaintiff to that of the defendant. There are no facts shown that are sufficient to induce the court, in my opinion, in advance of the trial, to enforce this covenant by. an injunction pendente lite. The question whether a court of equity should award its remedy by decreeing specific performance of the covenant, and an injunction, should be reserved to the trial of the action, when a full disclosure can be made of all the facts whereby the court may determine whether it is equitable and just that the injunction should be granted.
The order should be reversed on the law and facts, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.
Rich, Kelly, Jaycox and Young, JJ., concur.
Order reversed on the law and facts, with ten dollars costs and disbursements, and motion for injunction denied, with ten dollars costs.