22 A.2d 245 | N.J. Super. Ct. App. Div. | 1941
The appeal in this case is from a decree of the Court of Chancery dismissing a bill of complaint which sought to enforce a conceded restrictive covenant contained in deeds of conveyance to the complainants' and the defendant's predecessors in title.
The covenant requires a setback of the buildings (except as to porches) of fifteen feet from the front line of the lots affected. It appears that porches within the fifteen foot setback were common structures within the area.
The court found that the structures upon complainants' lot were not porches. We think that the proofs show otherwise. The structures were such as are commonly known as sun porches. Although the foundations and sidewall were of a similar construction to the main building and access was through the main structure, the design was such as to provide a roofed structure open to sun and air when desired or closed in with glass when rain and cold made it necessary. Marsh v. Marsh,
The learned Vice-Chancellor dismissed the bill on the theory that one who violates a mutual covenant may not complain of a similar violation by his neighbor. Roberts v. Scull,
The decree is reversed, with costs, and an injunction should issue.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, THOMPSON, JJ. 15.