116 N.Y.S. 834 | N.Y. App. Div. | 1909
Benjamin Stephens, Amelia A. Willett and. Elizabeth A. Bi;ice owned, and possessed in fee the block of land hounded by Fifth and Sixth avenues and Fifty-second and Fifty-third, streets in the1 city of ÍSÍew York. By deed dated and acknowledged Juné 9, 1871, and duly recorded, they conveyed to William. Sloane by full covenant and warranty deed premises 100 feet by 100.4 feet at the southeast corner of Sixth avenue and Fifty-third street, subject to restrictions: as follows : “And the said party of the second part for himself his heirs,, executors, administrators and assigns doth hereby covenant, promise.
“ And'said party of -the second part for himself, his heirs, executors, administrators and assigns doth hereby further covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that in ease he the said party of the second part, his heirs and assigns or any of them, shall build and erect, or cause to- be built and erected a dwelling house on the rear1 of said lot aforesaid to front on Fifty-third street, that whenever he or they shall convey thesame the deed or conveyance thereof shall contain in addition to the above restriction a clause of restriction against a ‘ meat -shop, cabinetmaker’s shop, bakery, tenement, community house, or any kind of manufactory, trade -or business Whatever ’ and shall contain the following provision ‘ That the building erected thereon shall be restricted to a private- dwelling without a store or stores underneath.’ ” The said deed further provided: “ The -said covenants to be construed and taken as covenants real running with the land.”
The remainder of the block on Sixth avenue was conveyed in 1868, three years prior to the conveyance to plaintiff’s predecessor in title, by the same grantors from- whom the plaintiff derives title,
On June 24, 1908, the plaintiff and the defendant entered into a contract as vendor and vendee of parcel A, being eighty and four-tenths feet on Sixth avenue and seventy-four and four-tenths feet on Fifty-third street. Said contract contained certain -provisions not germane to-this controversy, and concluded as follows: “ The property shall be conveyed by full covenant warrantee deed (short form) with marketable title in fee simple, free from incumbrance, excepting as herein stated.”
Defendant objects to and refuses to take title on the ground that the restrictions hereinbefore recited, contained in the deed .of Benjamin Stephens and others to William Sloane, prevent defendant from erecting on the premises in question a good and substantial building in height equal to not less than four stories above the basement and to be constructed of iron, cement or other fireproof material, the front thereof to face on Sixth avenue, and not to be of brown stone or Dorchester stone or Philadelphia brick with stone trimmings, to.be used as a theater, opera house or place of amusement, with a hotel, bar room or drinking saloon attached thereto or contained therein. In all other respects the plaintiff is ready, able and willing to deliver, and the defendant ready, able and willing to take title.
The statement of facts sets up that the use to which the property in question is put and the character of the neighborhood have changed since the creation of the restrictions; that Sixth avenue
If the question be answered in the negative, the plaintiff prays judgment against the defendant directing it to take title pursuant to the terms of the contract -of sale. If answered! in the affirmative, the defendant prays judgment against the plaintiff relieving It from its contract of purchase.
-It will be noted that the question■ submitted is peculiar-. The . contract provides that the property shall be conveyed! with marketable title in fee simplfe, free from incumbrance.-■' The, question stib- ' mitted is not that suggested by the contract — is the title marketable — but contains two propositions: First, are the restrictive covenants now operative? And, second, do they prevent the erection and use of a theater, opera house or place of amusement with a hotel, drinking saloon or bar room attached thereto’ or contained - therein ? - And by the submission judgment is to be entered for plaintiff or defendant: as the court may answer tins whole question, containing the two propositions, in the affirmative or the negative. The parties have -not, therefore, submitted the facts and asked for such judgment thereof) as the law requires, but have ¡presented- an ' issue made, by themselves.
In Missouri, K. & T. R. Co. v. Union Trust Co. (156 N. Y. 592),
The question at bar was obviously framed in the light of the decisions holding that a court of equity will not enforce restrictive covenants if subsequent events have made performance by the' defendant so onerous that enforcement thereof would impose great hardship to liini and cause little or no benefit to the plaintiff. (Trustees of Columbia College v. Thacher, 87 N. Y. 311.)
Rone of the cases, however, declare the covenant inoperative, but, while denying equitable relief, support an action at law for damages for the breach. Thus, in the Thaoher Case (supra) : “ In the case before us the plaintiffs rely upon no circumstance of equity, but put their claim to relief upon the covenant and the violation of its conditions by the defendant. They have established by their complaint and proof a clear legal cause of action. If damages have been sustained, they must in any proper action be allowed.”
In McClure v. Leaycraft (183 N. Y. 36) the court said: “ It cannot set aside a binding contract, but when the effect would be inequitable owing to facts arising after the date of the agreement and not within the contemplation of the parties at the time it was made, it refuses to enforce the contract and remands the party complaining to his remedy at law through the recovery of damages.”
So that in any event the first part of the submitted question must be answered in the affirmative because the court, having no power .to set aside a binding contract, an action for damages for the breach thereof exists, even if an injunction to enforce said contract would not be granted. The covenants, therefore, are still operative.
“ Do they prevent the erection and use ” of the described buildings ? Those words are ambiguous. Does the question mean that the erection of'such buildings would be prohibited by the mandate of a court of equity, or does it mean that the covenants cannot be breached without subjecting the violator thereof to an action for damages ?
We cannot say upon this submission whether a court of equity would or would not issue an injunction. It must be borne in mind that the original grantors owned the whole block'between Fifth and Sixth avenues, Fifty-second and Fifty-third streets, and that they
The jiarties to .the controversy might have submitted a clear cut question to the court—-was the title marketable? This they carefully refrained from doing, but in lieu thereof attempted to.procure an opinion from the court, as we may infer from the peculiar phraseology of the question, as to whether a court of equity would prohibit the erection of a building in violation of the covenants. Becauseneither the facts nor the parties necessary for the proper determination of that question are before the court, it declines to answer the question propounded. This proceeding, therefore, is dismissed.
Patterson, P.J., Ingraham, McLaughlin and Loughlin, JJ., concurred.
’ Proceeding dismissed. Settle order on. notice.