158 N.Y.S. 522 | N.Y. App. Div. | 1916
The defendant was the owner of the land and buildings known as Nos. 194 and 196 Second avenue, borough of Manhattan, New York, and on or about the 2d day of December, 1912, she entered into an agreement in writing for the sale and conveyance thereof to the plaintiff. At the time agreed upon for closing title, she tendered a full covenant warranty deed; but plaintiff refused to take title on account of restrictive covenants to which the title of defendant was subject. The restrictive covenants were contained in a deed forming part of defendant’s chain of title executed by Peter Gr. Stuyvesant and wife to James Robertson on the 31st day of January, 1846, and recorded in the office of the register of the city and county of New York on the same day in liber 473 of Conveyances, pages 17, 18 and 19. The grantee of the premises thereby covenanted with the grantor, his heirs and assigns, among other things, that neither he nor his heirs or assigns “shall at any time hereafter erect on the premises any building the front wall whereof shall approach within eight feet of the line of the avenue, * * * and that whenever the said premises shall be improved, there shall be erected thereon a building covering the width of said lot, and at least 45 feet deep, three or more stories high, two stories thereof to be at the least 24 feet in the clear and finished for a genteel residence, or else a church or place of public worship. And it is understood that this covenant is attached to the premises, and that it shall be lawful not only for the said Peter Gr. Stuyvesant, his heirs or assigns, but also for the owner or owners of any lot adjoining the premises, to institute and prosecute any proceedings at law or in equity against the person or persons violating the same, it being understood that this covenant is not to be enforced personally against the said party of the second part, his heirs or assigns, unless he or they being the owner or owners of the premises shall personally violate the same. ” The omitted part of the covenants was in the usual form against nuisances, and to them no objection was or is interposed.
The stipulated facts further show that when the deed containing the restrictive covenants was executed, the premises in question had not been built upon, but were subsequently
The plaintiff claims that notwithstanding these changes in the character of the neighborhood, and the failure to observe the restrictive covenants with respect to the character of the buildings, and with respect to the use of the eight feet immediately adjoining the street, the title, owing to those restrictive covenants, is unmarketable; and the defendant on the other hand contends that the stipulated facts render the restrictive covenants unenforcible.
It is highly probable that the restrictive covenants are no longer enforcible, and that there is but little danger of liability for damages for a violation thereof in the use of the premises in question; but those questions cannot be decided on this submission, for the parties who may attempt to enforce the restrictive covenants or to recover damages for their viola
As already observed, the parties for whose benefit these restrictive covenants were made are not before the court, and, therefore, it is not competent for the court to decide whether they are entitled to have a violation of the covenants enjoined, or to recover damages for a violation thereof. Those are the questions to which the briefs of the respective parties are addressed; but the question presented for decision by this submission is whether the defendant’s title is marketable, and the authorities bearing upon that question have not been cited, or drawn to our attention by counsel for either party. It is, however, the well-settled rule that specific performance of a private contract to purchase land will not be enforced unless the title is marketable, and that a title subject to restrictive covenants which impose greater restrictions on the use of the land than those imposed by law render the title unmarketable, and that the court will not in such case inquire into the question whether the restrictions are beneficial or otherwise. (Heller v. Cohen, 154 N. Y. 299, 306; Kountze v. Helmuth, 67 Hun, 343; affd., 140 N. Y. 432; Goodrich v. Pratt, 114 App. Div. 771; Wetmore v. Bruce, 118 N. Y. 319; Dieterlen v. Miller, 114 App. Div. 40; Heim v. Schwoerer, 115 id. 295; affd., 187 N. Y. 543; Scudder v. Watt, 98 App. Div. 228; McDougall v. Schneider, 134 id. 208.)
Clarke, P. J., Dowling, Page and Davis, JJ., concurred.
Judgment ordered for plaintiff as stated in opinion, without costs. Order to he settled on notice.