202 A.D. 625 | N.Y. App. Div. | 1922
The point presented for decision by the submission is whether the plaintiffs are entitled to the specific performance of a contract in writing made by the parties on the 1st day of May, 1922, for the conveyance by the plaintiffs and the purchase by the defendant of premises in the borough of Manhattan, county of New York, situated at the northeasterly corner of Thirty-seventh street and Madison avenue, having a frontage of 49 feet on the avenue and extending in depth therefrom at right angles 100 feet, upon which there had been erected and then was a dwelling house. The contract provided that the premises were to be conveyed subject, among other things, to the restrictive covenants contained in the Murray Hill restrictive agreement, so called, which was duly recorded, and also to the restrictions and limitations contained in the building zone resolution, adopted by the board of estimate and apportionment of the city of New York on the 25th day of July, 1916, and the supplements and amendments thereto, with a proviso as follows: “ provided such restrictive covenants and Building Zone Resolution and the supplements and amendments thereto do not prohibit nor restrain the American Bible Society from using said premises as its headquarters, office, storeroom, and place of receiving, sending out and disposing of Bibles and Testaments, and from making such interior alterations as may be necessary or proper for such use; and provided also that such covenants, resolution and supplements and amendments thereto are not such that the title to said premises will be rendered unmarketable by such use of the property and the making of such alterations.” The points of law arising on the submission are whether the uses which the defendant intends to make of the premises, as stated in. the proviso herein-before quoted, and the alterations therein described which it contemplates making, would constitute a violation of the restrictive covenants or of the building zone resolution as supplemented and amended, and render the title unmarketable for such uses. We have been materially aided by the points submitted by counsel for the Murray Hill Association, Incorporated, in which some authorities quite in point and not otherwise drawn to our attention are cited.
The Court of Appeals in Reformed P. D. Church v. Madison Avenue Bldg. Co. (214 N. Y. 268, affg. sub nom. South Church v.
The submission shows that the plaintiffs, as executors of the last will and testament of Joseph R. DeLamar, deceased, are the owners of the premises, and that the dwelling house erected thereon is vacant; that the defendant is a corporation duly organized and existing under and by virtue of a special charter granted by the Legislature of the State of New York by chapter 68 of the Laws of 1841 “ for the purpose of publishing and promoting a general circulation of the Holy Scriptures, without note or comment; ” that on the 10th day of May, 1922, the time prescribed by the contract for closing the title, the parties met and the plaintiffs tendered a conveyance of the premises duly executed, and the defendant rejected the title as rendered unmarketable by the use and alterations intended to be made by the defendant as recited in the contract, in that such use and alterations are prohibited by the Murray Hill restrictive agreement and the building zone resolution as supplemented and amended; that the remaining land in the same block is occupied by houses erected and used in accordance with the building zone resolution and said restrictive covenants; and that the plaintiff’s premises and the other lands in the block were received through mesne conveyances from a common grantor under said restrictive agreement. Copies of the contract and of the Murray Hill restrictive agreement, so called, of February 22, 1847, made between the ‘property owners, are annexed to the submission and it is left to the court to take judicial notice of the building zone resolution and supplements and amendments.
It is conceded that the defendant is a philanthropic or eleemosynary institution, that all of its income is devoted to the worthy object for which it was founded, and that it was not organized and is not operated for profit. The premises in question are located in a
“ § 3. Residence districts — In a residence district no building shall be erected other than a building, with its usual accessories, arranged, intended or designed exclusively for one or more of the following specified uses:
“ (1) Dwellings, which shall include dwellings for one or more families and boarding houses and also hotels which have thirty or more sleeping rooms.
“ (2) Clubs, excepting clubs the chief activity of which is a service customarily carried on as a business.
“ (3) Churches.
“ (4) Schools," libraries or public museums.
“ (5) Philanthropic or eleemosynary uses or institutions, other than.correctional institutions.
“ (6) Hospitals and sanitariums.
“ (7) ■ Railroad passenger stations.
“ (8) Farming, truck gardening, nurseries or greenhouses.
“ In a residence district no building or premises shall be used for any use other than a use above specified for which buildings may be erected and for the accessory uses customarily incident thereto. The term accessory use shall not include a business nor shall it include any building or use not located on the same lot with the building or use to which it is accessory. A private garage for more than five motor vehicles shall not be deemed an accessory "use.” (See Minutes Bd. Est. & Apport. of City of New York, 1916, vol. 5, p. 4244; Cosby’s Code of Ordinances [Anno. 1922], p. 583.)
Since the defendant is limited by its charter to publishing and promoting a general circulation of the Holy Scriptures without note or comment, and its functions have been and are strictly confined thereto, it seems quite clear that the building zone resolution does not prohibit it from conducting its business in a “ residence district.” Counsel for the defendant does not contend that the contemplated alterations and use of the dwelling would be in violation of the building zone resolution. He merely submits the point for decision on the ground that the defendant cannot afford to take any risk or to have its trust funds dissipated in litigation. His main contention is that the contemplated alterations and use of the dwelling are prohibited by said restrictive agreement, which
It is recited in the Murray Hill restrictive agreement that the parties thereto are the owners “ of divers lots and parcels of ground situate in the 18th Ward of the City of New York, lying on each side of 34, 35, 36, and 37th Streets and on the South side of 39th Street, lying between Madison Avenue on the westerly side and Lexington Avenue on the Easterly and also on said Madison Avenue, Lexington Avenue and 4th Avenue as the same are particularly laid down on a map in the Office of the Register in and for the City & County of New York, entitled Map of the Murray Hill Estate, made by Joseph T. Bridges, City Surveyor, Feby. 25, 1839,” and it provides that the several parties, in consideration of the covenant and agreement on the part of the others and of one dollar, “ have covenanted, bargained, and agreed and each of them by these presents doth covenant, bargain and agree with the others and with each of the others and each for himself, his heirs and assigns with the others, their heirs and assigns, and with each of the others, his heirs and assigns, that neither of them nor his heirs and assigns shall or will at any time hereafter erect or cause to be erected upon any of the lots owned by them respectively or any part of the same any building or erection other than brick or stone dwelling houses of at least two stories in height, and with the ordinary yard appurtenances to dwelling houses and except churches and stables of brick or stone for private dwelling and further that they will not hereafter erect or permit upon such lots or any part of the same any livery stable, slaughter house, smith shop, forge, furnace, steam engine, brass foundry, nail or other iron factory or any manufactory of gun powder, glue, varnish, vitriol, ink or turpentine or for the tanning, dressing or preparing skins, hides or leather or any brewery, distillery, museum, theatre, circus, place for the exhibition of wild animals or any other erections known as nuisances in the law, and it is further agreed and covenanted that the above covenants shall be deemed and taken to be covenants running with the land. And that in case of any violation or attempted violation of the covenants herein contained by any of the parties hereto, his, her or their heirs, executors or assigns, a bill may be filed by any one or more of the other parties hereto, their or his heirs, executors or assigns to obtain a perpetual injunction against the same.”
The dwelling house on the premises was erected' in strict con
It has been held that premises subject to a covenant with respect to use, and limiting the use to dwelling house purposes, “ may be also used as a place for carrying on some kinds of business provided such business is of such character as to be no inconvenience to neighboring property holders ” (Smith v. Graham, 161 App. Div. 803; affd., on App. Div. opinion, 217 N. Y. 655); but in a later case the Court of Appeals held that a restrictive covenant to erect “ a first-class building, adapted for and which shall be used only as a private residence for one family ” ran with the land and was intended for the benefit of successive owners of the lots in the tract of land so restricted, and that an attempt to use a building originally erected in conformity with the restriction for the residence and office of a physician and as a maternity hospital without exterior change or indication other than a small sign with the name of the doctor, was in violation of the covenant arid should be enjoinéd. (Booth v. Knipe, 225 N. Y. 390.) In Clark v. Jammes (87 Hun, 215) it was held that such covenants should be most strictly construed against the grantor; and that a covenant to the same effect as that now under consideration, between owners of adjacent lands, that they shall not or will not “ at any time hereafter erect on any of the
The courts have construed the Murray Hill restrictive agreement on many occasions. The general rule that such covenants are to be construed strictly against the grantor and in favor of the grantee has been recognized as applicable thereto, but it has been held or an opinion expressed, although in some instances it was obiter, that the property owners intended by the agreement to restrict the use of the premises for the reason that use was necessarily involved in the designation of the character of the buildings affected thereby as dwelling houses, and to maintain the residential character of the restricted district; and that such intent was controlling; but that it did not prohibit the erection of apartment houses or the alteration of a dwelling into an apartment house. (Reformed P. D. Church v. Madison Avenue Bldg. Co., supra; Goodhue v. Cameron, 142 App. Div. 470, Presiding Justice Ingraham’s concurring opinion at p. 486; Irving v. Huntington, opinion by- David Leventritt as referee, in 1911, after leaving the bench, but not reported; Schoonmaker v. Heckscher, 171 App. Div. 148; affd., 218 N. Y. 722. See, also, Barnett v. Vaughan Institute, 134 App. Div. 921; affd., 197 N. Y. 541; Sonn v. Heilberg, 38 App. Div. 515; Levy v. Schreyer, 177 N. Y. 293; Kitching v. Brown, 180 id. 427; Longworth v. Deane, 15 App. Div. 463; Goodhue v. Pennell, 164 id. 821; Clark v. Jammes, supra; Reed v. Sobel, 177 App. Div. 532; Baumert v. Malkin, 178 id. 913; Hutchinson v. Ulrich, 145 Ill. 336; Parker v. Nightingale, 6 Allen [Mass.], 341.) Plaintiffs also rely on Kurtz v. Potter (44 App. Div. 263; affd., without opinion, 167 N. Y. 586), wherein the Appellate Division, after deciding that the
In Amerman v. Deane (132 N. Y. 355) the court construed a covenant, which it was agreed was to run with the land, that a grantee would not “ at any time thereafter, erect, suffer or permit upon the premises thereby conveyed, or any part thereof, any tenement house,” as forbidding use, on the ground that both construction for and such use must concur to constitute a building a tenement house within the intent of the parties .to the covenant. This court in Longworth v. Deane (15 App. Div. 461), in .commenting on that decision of the Court of Appeals, construed it as holding that'the covenant was essentially one against use. In Barnett v. Vaughan Institute (134 App. Div. 921) the court affirmed a judgment in favor of the plaintiff on the opinion of .the Spécfal Term, which is reported in 119-New York Supplement, 45, and the Court of Appeals affirmed
I am of opinion, therefore, that the defendant should have judgment on the submission, dismissing the controversy on the merits, and for the return of its down payment of $5,000, but without costs.
Clarke, P. J., Dowling, Smith and Page, JJ., concur.
Judgment ordered for defendant as stated in opinion, without costs. Settle order on notice.