88 N.J. Eq. 204 | New York Court of Chancery | 1917
The bill is filed by the owner of a piece of property on the westerly side of Lincoln avenue, in the city of Newark, between Elwood and Delavan avenues, to prevent the erection of an apartment-house upon the southwesterly corner of Elwood and Delavan avenues, a point distant from complainant’s house, exclusive of the width of Dclavan avenue, of one hundred and three and eight-tenths feet. The right of complainant is based upon an agreement entered into on or about the 1st of February, 1894, between the then owners of the property extending from a point one hundred feet south o£ Elwood avenue on the westerly side of
Facing complainant’s house there have been erected on the northeast corner of Delavan and Lincoln avenues two two-family houses. The remainder of the easterly side of the street is built up in approximately twenty-one one-family houses. These houses, however, are not comparable in any respect with those built upon the westerly side of the street. While -they are private dwellings, each of them covers practically an entire lot, this with few exceptions, and they are of much cheaper construction than those which apparently were contemplated by the parties to the agreement. The street next easterly to Lincoln avenue is Washington, and between Delavan and Elwood it has developed into a business section with some two-family houses and dwellings. Some of the dwellings on the easterly side of Lincoln avenue, between Delavan and Elwood, are houses which have been removed from the westerly side of Washington. The easterly side of Summer avenue, which is the westerly boundary of the block in which complainant’s house is situate, is built up substantially in two-family houses. There are ten two-family houses and nine single houses, excluding the dwelling on the southeasterly corner of Summer avenue and Elwood, and the dwellings are of the class that I have described as having been built on the easterly side of Lincoln avenue. On the easterly side of Summer avenue, extending from the southeasterly corner of Summer and Delavan, and -on the property formerly of the Phillips estate, there have been erected a row of houses, eight of which are two-family and one of which is three-family. On the easterly side of Lincoln avenue, south of Delavan, there are a number of private dwellings of the character that I have de
A survey of the territory in the vicinity indicates clearly that it has grown into a place principally for two-family and apartment-houses and small dwellings. On the northeasterly corner of Washington avenue and Delavan, a block away from complainant’s house, is a twenty-three-family apartment-house; about a quarter way down the block, on the easterly side of Washington avenue, between Delavan and Chester, approximately two blocks from complainant’s house, is a large apartment-house. The testimony taken before me demonstrates that the property within the restricted area is no longer salable for residential purposes. Two witnesses, one of whom was Alfred S. Skinner, Esq., who owned the property on the northwesterly corner of Lincoln avenue and Delavan, and was a party to the
My conclusion is that it wauld be inequitable for this court to at this 'time enforce the restrictive agreement and that the case is within that of Page v. Murray, 46 N. J. Eq. 325.
I will advise a decree dismissing the bill, but, under the circumstances, the dismissal will be without costs. This case is determined, of course, solely upon the facts now before the court, and I express no opinion as to whether, if an attempt were made to erect in this neighborhood a tenement-house .or a factory, or if an attempt were made to violate the restrictive agreement in any other manner, this court would or would not intervene.