123 N.Y.S. 759 | N.Y. App. Div. | 1910
The plaintiff is the owner of some-real property at New Rochelle in Westchester county, which at one time was part of a tract of land which had been improved and offered for sale in. lots by one. Prince. Pririce.sold the lots to purchasers under restrictions as follows
. “ And the- said party of the second part does covenant and agree that the grant and conveyance as aforesaid shall be subject to the following covenants, conditions and restrictions, which shall be binding upon them, their heirs, executors, legal representatives and grantees of the respective parties: - . -
“ That the said party of the second part shall not build or permit to be built on said premises any house or dwelling of a value - l'eés than'$4,500,. or being less than two and one-half stories in-height, or of the style known as ‘ flat-roof.’
“ No part of said.premises shall be used for any Hospital, Insane, Inebriate or other Asylum, public or private, or Cemetery or place of burial.
*201 "No building or structure for any business purpose whatsoever shall be erected on said premises.
"No part of any structure, erected shall be within fifteen feet of any street or street line upon which the lot or lots abut, except the steps, which may project a reasonable distance beyond the structure.
“No dwelling shall be erected on any plotless than two lots.
“ No part of any barn, stable or other structure or structures of any kind or description erected upon said premises shall be within sixty feet of the line of the street or avenue on which the lot fronts, or within twentyrfive feet of any side street; nor shall there be érected on any. part of said lot-any slaughter-house, smith-shop, forge, furnace, steam engine, brass foundry, nail, iron or other foundry, or any manufactory of gunpowder, glue, varnish, vitriol, ink, turpentine, or for the tanning, dressing or preparing skins, hides or leather, or any manufactory whatever ; or any ale house, brewery, distillery,' saloon, liquor store, hotel or inn, or livery stable, or any other obnoxious, dangerous or offensive business or trade, or any building of the character or description known as a tenement house. There shall be no toilet outhouse of any kind or description upon the premises. No closed fence shall be erected on said premises, excepting on the rear line thereof, and that no fence shall be erected on said premises more than four feet high, excepting on the rear line thereof.
, “ No poultry shall be kept upon any part of the premises unless such poultry is retained or inclosed in proper runs or inclosures.
“ It being understood and agreed that said covenants and conditions shall run with the land, and shall be enforceable both as covenants and conditions, with the right of re-entry in case of breach thereof.”
Among the purchasers was one Alice Harmer, who subsequently conveyed her lots to the defendant the City and County Contract Company by deed which contained clauses as follows.:
“ Subject, nevertheless, to covenants against nuisances and restrictions as to buildings and conditions contained in former deeds,” and
“ Subject als.o to the equitable rights of owners of other lots upon said map of Theodore Prince to have enforced the covenants, con- ' ditions and restrictions contained in former deeds affecting the premises.”
The “separate and distinct” defenses in question are numbered “ Second ” and “ Fourth.” Thé first in order is in effect that the defendant is a legally organized railroad company with all necessary franchises and consents of local authorities; and lias adopted, pursuant to law, a plan of route for the construction of its railroad, and that such plan requires the use of the land in question, and that the public convenience and necessity require the use- of said land for railroad purposes. The next defense, in order for the purposes of this appeal, is in effect that the restrictive covenants which the plaintiff seeks to enforce “ are wholly void and without, effect, being against public policy.”
That this last-mentioned defense, numbered “ Fourth,” is insufficient on its face seems to me so clear as to forbid any possible discussion, beyond the mere observation that restrictions of the character set forth in the complaint have been upheld and enforced in equity between private parties so frequently-and so continuously as to render any present citation of authority wholly unnecessary. Is there any difference in rule because the party violating the covenant is a steam railroad company organized for public purposes ? The answer to this question brings up the sufficiency of the defense numbered “Second.” If this defense had been pleaded as “a partial defense,” it would have been good against demurrer. The action being in equity for injunctive relief, it rests upon the discretion and conscience of the court whether an injunction should be granted or other appropriate relief awarded. (Raymond v. Transit Development Co., 65 Misc. Rep. 70; affd. on opinion, below, 134 App. Div. 981.) But the defense is not. pleaded as “partial,” and-must be considered as intended as a complete defense. (Thompson v. Halbert, 109 N. Y. 329.) That it is not a complete defense seems beyond argument. It is. true that a railroad company is a
I recommend, therefore, that the interlocutory judgment overruling the demurrer be reversed, with costs, and that the demurrer be sustained, with leave to the defendant to serve an amended answer on payment of thirty dollars costs within twenty days.
Hirsohberg, P. J., Woodward, Thomas and Rich, JJ., concurred.
Interlocutory judgment overruling demurrer reversed, with costs, and demurrer sustained, with leave to the defendant to serve an amended answer on payment of thirty dollars costs .-within twenty