216 A.D. 135 | N.Y. App. Div. | 1926
Lead Opinion
The very important question to resident owners of real property in Manhattan is presented on this appeal — whether or not there is any protection to the privacy of a residence block against the encroachment of business buildings therein in violation of an express covenant forbidding the permitting of the use of the land for any purpose except for a building used as a “ dwelling house for a single family? ” It is a futile argument in justification of nullifying this covenant to say that the neighborhood has changed in character, since the restriction was imposed not to govern a general neighborhood improvement, but was so obviously designed as a block restriction only, as not to need argument to support that view of its purport. The facts, which were uncontested but not found in the formal decision at Special Term, demonstrate that the conclusion below that plaintiffs are not entitled to any relief for this invasion of their privacy is so erroneous as to require reversal on fact and law. A summary of the history of the controversy follows:
For many years prior to 1907 the New York Public Library was the owner of the whole square block bounded by Fifth and Madison avenues, Seventieth and Seventy-first streets. It first sold the westerly portion of the block, consisting of the, entire Fifth avenue frontage, running back 175 feet. This plot is occupied by the Frick Mansion. Thereafter when the library disposed of the parcels within the easterly half of the block it imposed upon this latter area the following restrictions;
*137 “ The said party hereto of the second part, for him (her) self, his (her) heirs and assigns, hereby covenants and agrees to and with the said party of the first part, its successors or assigns, that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the first day of January, Nineteen hundred and twenty-nine (1929) erect or permit upon the above granted premises, or any part thereof, any building, except a dwelling house for a single family, and further that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the said first day of January, Nineteen hundred and twenty-nine (1929) erect or permit upon the above granted premises any such building, or any other structure, or any extension thereof, or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the centre fine of the block between Seventieth and Seventy-first Streets.”
Following the imposition of the restriction a group of dwelling houses was erected on the block in conformity with the restrictions. The photographic exhibits testify to the high-class character of these residences.
In 1922 the plaintiffs purchased a plot within the restricted area, on the south side of Seventy-first street, adjoining the corner of Madison avenue, having a frontage of forty-five feet, on which they erected the residence in which they now live. The plaintiffs later bought for their protection the adjoining property situated at the southwest corner of Madison avenue and Seventy-first street, subject to a lease to a Dr. Frederick Tilney.
On March 3, 1924, the defendant Finch purchased the plot located at the northwest corner of Seventieth street and Madison avenue, within the restricted area. The deed to him conveyed the property subject to the restriction. On July 1, 1924, he leased this plot to the defendant Joray Holding Company, Inc., subject to the same restrictive covenant. But nevertheless by this lease the tenant was bound to erect a building to be used for stores and offices and the owner in turn agreed to advance part of the cost. The owner, in the lease, also assumed the defense of any action brought to enforce the restriction and waived his rent during the continuance of any injunction against the operation.
The court below found that at the time the restrictions were placed on the property, Madison avenue, in that vicinity, was a private residential neighborhood and that at the time of the commencement of this action, and at the present time, it is entirely a business district.
There is testimony on behalf of defendants that at the time the restrictions were placed on the property the neighborhood was a
The plaintiff’s uncontradicted proof shows that north of Fifty-ninth street and up to Eighty-sixth street along Madison avenue very many properties at that time were occupied for business purposes.
The case of Korn v. Campbell (119 App. Div. 401; affd., 192 N. Y. 490), involving property at Seventy-third street and Madison avenue, demonstrates that it was the desire of the owner of that property at that time to make alterations so that his building might be used for business purposes, and further that as early as 1906 business was already feeling its way into Madison avenue in the vicinity of the seventies, and that Madison avenue at the time of the creation of the restrictions here sought to be enforced was not strictly residential. Thus it would seem to be clear that it was the desire of those interested in the block here affected to restrict its particular territory to dwellings for the duration of the restrictive period.
The court below found that the plaintiffs’ premises, at the southwest corner of Madison avenue and Seventy-first street, “ was and is not used or occupied as a dwelling house for a single family, but on the contrary was and is occupied and used by three physicians, to wit: Dr. Tilney, Dr. Howe and Dr. Riley, for the treatment of their patients and the carrying on of their business, one of whom resides with his family and his nephew on the said premises and the other two of whom reside elsewhere and merely have their offices on the said premises.”
The building at the southwest corner of Madison avenue and Seventy-first street is, as the photograph thereof indicates, a private residence. It has not been changed one iota in its external aspect. This building was acquired by plaintiffs subject to Dr. Tilney’s lease. On the ground floor of that house are a waiting room and a secretary’s room, the kitchen and laundry. On the next floor are the drawing room, dining room and butler’s pantry. The fourth floor and the top floor are devoted to the living quarters of the family and of the servants. The doctor’s practice is conducted on the third floor. The doctor testified that in the suite of offices which takes up the entire third floor of the house he occupied one room as his consulting room, the second room was used as the examining room, the third room was used as another examining room, the fourth room was used by Dr. Riley and Dr. Howe as an
In Smith v. Graham (161 App. Div. 803; affd., on the opinion below, 217 N. Y. 655) it was said: “ But it would seem to be true that a dwelling, so long as it is used as such, may be also used as a place for carrying on some kinds of business provided such business is of such character as to be no inconvenience to neighboring property holders. As is suggested in Dorr v. Harrahan (101 Mass. 531), such a house 1 might be occupied by a physician, or a lawyer, perhaps by a chemist or photographer, and a portion of it set apart as an office or place of business without any offence or objection. All this would be allowable under the deed.’ * * * ”
In Smith v. Scoville (205 App. Div. 112), decided by this court in April, 1923, before the purchase of this property, it was held that the conduct of a boarding house business did not violate a restriction providing that no building should be erected excepting “ first class dwelling houses ” and that no “ trade or business ” whatsoever should be conducted on the premises. In the opinion in that case the opinion of the Fourth Department in Smith v. Graham (161 App. Div. 803; affd., 217 N. Y. 655) is quoted, as follows: “ But it would seem to be true that a dwelling, so long as it is used as such, may be also used as a place for carrying on some kinds of business provided such business is of such character as to be no inconvenience to neighboring property holders.”
And in Iselin v. Flynn (90 Misc. 164), an action brought to restrain the conduct of a dressmaking establishment on premises affected by a restrictive covenant confining the premises to first-class dwelling houses, injunctive relief was resisted on the ground that the presence of physicians on the block practicing their professions in their homes changed the character of the occupancy from residence to business. There it was said: "A number of physicians eminent in their profession have taken up residence in the street, and it is claimed that they in fact conduct business which has consequential effects upon the neighborhood. It is not necessary to enter upon an ethical discussion of the difference between a livelihood gained by the practice of a profession and that by a business vocation. The law is practical. It is not concerned with abstractions, but with the actual affairs of men,
In the case of Booth v. Knipe (225 N. Y. 390), which the respondents say is directly in point, the Court of Appeals said (p. 397): “We cannot doubt that the attempted use is a breach of the restriction. The lease provides that the building shall be ‘ occupied as a sanatorium and not otherwise.’ The evidence makes it clear that it is used as a maternity hospital. By no stretch of language can we say that this is equivalent to use ‘ as a private residence for one family.’ ” A perversion of analogy would result from attempting to hold these cases even approximately similar.
Much is made of the fact that at the time of the commencement of the action the plaintiffs were maintaining a wall projecting from their building located at the southwest corner of Madison avenue and Seventy-first street, about sixteen feet high. It should be borne in mind that this was the condition when the plaintiffs acquired the corner to protect their home, and that in the early part of March, 1925, they removed the upper four feet of this wall, so as to bring it within the limit of the restriction, and this was the condition at the time of trial at which period equity finds its facts and molds its decree.
The plaintiffs herein did not move for an injunction pendente lite. There is testimony, however, that as soon as plaintiffs learned of the situation, the matter was taken ■ up with the defendant Finch, in the effort to arrive at an amicable settlement. When negotiation failed this action was immediately brought. The defendants proceeded with their structure heedless of plaintiffs’ protest. Plaintiffs justifiedly state there was no occasion for the defendants’ unseemly haste. If unwilling to await this action, they could themselves have brought an action for a declaratory judgment as to their rights and duties (Civ. Prac. Act, § 473; Rules Civ. Prac. rules 210-214) before commencing their building operation, prima facie a breach of a solemn covenant. Certainly they do not, through their precipitate conduct in forestalling legal action, create an equity in their favor. The notion that a defendant warned -against a threatened violation, can obtain immunity from an injunction by paying no attention to the
We find that nothing could be less doubtful than that when the restriction was created, it was desired to maintain this particular block as one for private dwellings only. If independent or original judgment was controlling, it would be restrained by our own ruling in Pagenstecher v. Carlson (146 App. Div. 738, 1st Dept. 1911). The plaintiff in that case owned three houses on the south side of West Fortieth street, between Fifth and Sixth avenues, being Nos. 48, 50 and 52. The defendant owned No. 38 West Fortieth street. The restriction affecting these properties was imposed in 1871 upon the holding of a partition sale of about half of the block on the south side of West Fortieth street. The restriction confined the property to private dwelling houses. The defendant threatened to alter her house for business purposes. In rejecting the defendant’s contention that the invasion of business in this district entitled her to alter her building for business purposes in defiance of the restriction, this court, through Mr. Justice Miller, said: “ While it is quite true that the current of business has reached the restricted territory, that of itself does not afford ground for denying equitable relief, for, as was said by Danforth, J., in Trustees of Columbia College v. Thacher (87 N. Y. 311, 319), it is apparent that such encroachment was anticipated. It cannot be said that the encroachments of business have made the property undesirable for private residences. • A fine public building and a park occupy the block on the north side of Fortieth street. The plaintiff says that she wishes to enjoy her property as a private residence. When she purchased it she had a right to rely upon the assumption that the encroachment of business would be stopped at the fine of the restricted territory, and, in our judgment, it is no answer to her claim for equitable relief that the property may be worth more for business purposes. The defendant bought knowing, or chargeable with knowledge of, the restrictive covenant. * * * If the further encroachment of business on the block be prevented, the plaintiff’s premises may remain desirable for residence purposes, and it cannot be said, therefore, that the enforcement of the covenant will harm the defendant without conferring any substantial benefit on the plaintiff.”
The respondents urge as factors in their favor the fact that the restriction has to run to 1929 only, and the further fact that in
The judgment appealed from should be reversed, with costs, and judgment entered in favor of the plaintiffs for the relief asked for, with costs.
Dowling and Martin, JJ., concur; Merrell, J., dissents.
Dissenting Opinion
The action was brought to obtain a mandatory injunction requiring the defendants to remove a two-story business building erected by the defendant Joray Holding Company, Inc., on real property on the northwest corner of Madison avenue and Seventieth street in the borough of Manhattan, New York city, owned by the defendant Edward R. Finch. The building sought to be removed is a new one, erected since July 1, 1924, when the real property in question was leased by defendant Finch to the defendant Joray Holding Company, Inc. The building was erected at a cost of between $43,000 and $44,000. The plaintiffs in the action seek to compel the removal of said building by virtue of a restrictive covenant contained in a prior deed conveying said premises and subject to which the defendant Finch took title. The restriction expires on December 31, 1928, having, therefore, less than two years and ten months still to run, after which time the premises may be devoted to such uses as the owners thereof may see fit. The covenant in question' forbade the erection upon the said real property of any building, except a private dwelling house for a single family. No application was made herein for a temporary injunction pendente lite. At the close of the trial, upon the evidence presented, the court directed judgment in favor of the defendants, dismissing the plaintiffs’ complaint. The deed under which the defendant Finch holds title to the property in question is subject to the following restrictive covenant:
“ The said party hereto of the second part, for him (her) self, his (her) heirs and assigns, hereby covenants and agrees to and with the said party of the first part, its successors or assigns,’ that,*143 neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the first day of January, Nineteen hundred and twenty-nine {1929) erect or permit upon the above granted premises, or any part thereof, any building, except a dwelling house for a single family, and further that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the said first day of January, Nineteen hundred and twenty-nine (1929) erect or permit upon the above granted premises any such building, or any other structure, or any extension thereof, or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the centre line of the block between Seventieth and Seventy-first Streets.” (Italics are the writer’s.)
The defendant Finch acquired said property by deed bearing date March 3, 1924, and on July first following he leased the plot to the defendant Joray Holding Company, Inc., which erected thereon, during the summer of 1924, a substantial business building, built of whitestone, two stories in height. If the aforesaid restrictive covenant was in force at the time title to the real property passed to the defendant Finch and at the time of the erection of the business building thereon by the defendant Joray Holding Company, Inc., and no other elements entered into the question, then the plaintiffs should have received the equitable relief for which they prayed.
Two defenses were interposed by the defendants at the trial: First, it was the contention of the defendants that in 1907, when the restriction was placed upon the property, the neighborhood was a residential one, there being in that vicinity only an occasional and widely separated business establishment, but that since 1907 the character of the neighborhood had radically changed, and that at the time of the commencement of the action business establishments had taken possession and the neighborhood was one devoted almost exclusively to business. The second defense interposed was that the plaintiffs themselves did not come into court with clean hands, and that they had and still were openly violating the very covenant which they seek to enforce. The Special Term held with the defendants and denied the plaintiffs injunctive relief.
The block in question, bounded on the west by Fifth avenue; on the south by Seventieth street; on the east by Madison avenue, and on the north by Seventy-first street, was for many years prior to 1907 owned by the New York Public Library. The library first sold the westerly portion of the block lying along Fifth avenue and extending back 175 feet. This plot comprised a little less
In substantiation of their first defense, the defendants sought to show that since the time when said restrictions were imposed the use of the property in the neighborhood had radically changed. The defendant Finch testified that in 1907, when the restrictions were first placed upon the property, the neighborhood was a fine residential one, and that at that time the nearest place of business to the north of the property in question was a drug store located at the southeast corner of Seventy-fifth street, and that the nearest place of business on Madison avenue to the south was in the vicinity of Fifty-ninth street. The defendant Finch further testified that at the time he purchased the property every property in practically the entire length of Madison avenue in that vicinity had been given over to-business. A large number of photographs
I assume, by the words “ at that time ” the writer refers to the time when the restrictive covenant was imposed in 1907. As I read the record, the above-quoted statement is unsupported by the evidence. I find no proof on the part of the plaintiffs that in 1907, when the restriction was first imposed, there were any properties along Madison avenue to the north in the vicinity of the restricted area occupied for business purposes, save the Cassebeer chemist shop, at the southeast corner of Seventy-fifth street, and the cleaning establishment between Seventy-fourth and Seventy-fifth streets, and a store at the southeast corner of Sixty-ninth street, to the south. The defendant Finch and his three real estate witnesses all testified from actual recollection of the conditions existing in 1907. The plaintiffs produced but one witness, Everett A. Brett, who attempted to testify as to the conditions in 1907. An examination of Brett’s testimony shows it to be most indefinite and of little probative value. This witness, on his direct examination, in response to leading questions by counsel for the plaintiffs, gave some very nebulous testimony' as to the character of the neighborhood with reference to the “ period from 1907 to 1910 ”— a period extending three years beyond the time
The foregoing excerpt from the testimony of plaintiffs’ sole witness on that subject, short of showing that “ plaintiffs’ uncontradicted proof ” was that at that time there were “ very many properties ” occupied for business purposes, corroborates the testimony of the defendant Finch and his witnesses that in 1907 there were only two or three widely-separated business establishments on Madison avenue from Sixty-fourth street to Seventy-fifth street. It is significant that the inquiries on the direct examination of the witness Brett were not as to conditions in 1907, but were with reference to “ the period from 1907 to 1910.” In this rapidly-changing city, where the character of a neighborhood is altered from a residential to a business one almost overnight, it would be likely that three years after the covenant was imposed conditions had changed. It is easy to say, in the light of succeeding events, that when the restriction was imposed the owner of the block foresaw the impending advance of business upon Madison avenue, but the record, in my opinion, shows nothing to justify such an apprehension in 1907. At the time the restriction was imposed, the locality was a residential one. The appellants make much of the assumption that at the time the covenant was imposed the immediate locality was in process of changing from a residential to a business one — an assumption, as I have shown, unsupported by the evidence — and that the restriction was imposed with that end in view, and upon such erroneous assumption they base their answer to defendants’ claim that the changed conditions were sufficient to destroy the efficacy of the covenant. The facts destroy the plaintiffs’ claim in this respect. The court found upon the testimony that at the time the restrictions were placed upon the property Madison avenue, in the vicinity of defendants’ plot, was a private residential neighborhood, and that at the time of the commencement of the action it had entirely changed into a business neighborhood. I think the finding of the trial court in this respect was amply supported by the evidence, and was not contrary to the weight thereof. The law is reasonably well settled that equity should not interfere to enforce by its péculiar mandate restrictive covenants hmiting property to original purposes where there has been a change in the character of the neighborhood since the restriction was imposed from a residential to a business one.
In the case at bar the restrictions were placed upon the property in 1907. They expire on December 31, 1928. Over nineteen of the twenty-two years when the restrictions were enforcible have passed. Less than two years and ten months remain when such restrictions in any event may be enforced. The Court of Appeals in Batchelor v. Hinkle (210 N. Y. 243) followed its decision in McClure v. Leaycraft (supra). In the case of Trustees of Columbia College v. Thacher (87 N. Y. 311) Judge Danforth, writing for the Court of Appeals, said (at p. 317): “ It certainly is not the doctrine of courts of equity, to enforce, by its peculiar mandate, every contract,
In Schefer v. Ball (53 Misc. 448; affd., 120 App. Div. 880, and
In the case at bar almost the entire property in the vicinity of the block upon which the plaintiffs’ residence has been built is devoted to business purposes. All that the plaintiffs are seeking to accomplish is for a period of a little over two years to enforce a covenant which can no longer practically benefit them. They contend that the use by defendants of their property for business purposes offends them. They are shocked at seeing people engaged in trade so near their place of residence, and yet they cannot but look about and see the same thing on all sides. Plaintiffs’ residence was built in 1922, and at that time they knew that for only six years could they bar the use of the other property in the block for business purposes. Photographs were introduced in evidence showing the fine residence erected by the plaintiffs. Interior views are presented showing handsomely furnished apartments, and yet, if there is any substance to their claim, they are bound to be ruined after a brief périod of less than three years. So far from cutting off their light from the rear windows of their residence, the building erected by the defendants is far less objectionable than would be a residence erected thereon which ordinarily would be many more stories in height than the two-story building erected by the Joray Holding Company, Inc. The appellants claim that the view of the defendants’ business building from the rear windows of their Seventy-first street residence is offensive. As a matter of fact, owing to the presence of the building on Seventieth street west of the defendants’ structure, and which abuts upon the plaintiffs’ residence at the rear, the plaintiffs are able to see only a part of the defendants’ building. Under the decisions of the courts I think there has been such a radical change in the neighborhood as to require a denial of the drastic relief which the plaintiffs seek. Because of the brief period of two years and ten months, building for business purposes may be withheld, and without taking any steps to restrain the outlay by the defendants of over $40,000, they now, upon what seems to me to be a mere whim, ask that the valuable and expensive building erected by the defendant Joray
The learned court below found that by their proofs the defendants had. established that the plaintiffs had come into court with unclean hands, and that they themselves had openly violated the provisions of the restrictive covenant in both its branches. The restrictive covenant is of two parts. The first part restricts the erection upon any part of the restricted area of any building except a dwelling house for a single family. The second part of the restriction provides that there shall be erected on the premises no building or other structure or any extension thereof or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the centre line of the block between Seventieth and Seventy-first streets. This restriction was manifestly for light and air for a space of twenty feet running easterly and westerly through the restricted area. The evidence shows that at the time the defendant Finch acquired title to the property in question, there had been erected in connection with the building owned by the plaintiffs at the southwest corner of Madison avenue and Seventy-first street at the most southerly end thereof on Madison avenue a wall or extension running along Madison avenue on the line of the front wall of plaintiffs’ building sixteen feet, in height to the division fine between the property of the plaintiffs and that of the defendant Finch. This erection was clearly in violation of said restrictive covenant, and of itself was sufficient to close the doors of equity upon the plaintiffs. After the action was commenced and before the trial, the plaintiffs caused said wall or erection to be torn down to the height of about twelve feet. They insist that a court of equity looks at the property as it was situated at the time of the trial. While this may be the general rale, still I think the defendant Finch was justified in observing the conditions as they existed at the time he purchased the property and at the time the building was erected thereon by his tenant. At that time the plaintiffs had themselves violated the covenant. At the time the action was commenced they were in no position to enforce the same.
But a more serious violation of the restrictive covenant rested in the fact that at the time the property in question was purchased by the defendant Finch, the house owned by the plaintiffs adjacent to said defendant’s property to the north and facing on Madison avenue was occupied otherwise than as a dwelling house for a
In relation to such occupancy, Dr. Tilney testified on cross-examination as follows: “ Q. Will you tell in detail what each one of those rooms is used for? A. I will. The first room I use as my consulting room. The second room is used as an examining room. The third room is used as an examining room, and the fourth room is used by Dr. Riley and Dr. Howe, and the fifth room
The case of Barnett v. Vaughan Institute (affd., on opinion of Mr. Justice Thomas at Special Term, 119 N. Y. Supp. 45; 134 App. Div. 921; affd., by the Court of Appeals, 197 N. Y. 541) defines private house and dwelling. At page 46 Mr. Justice Thomas wrote: “ A ‘ private house ’ is a private dwelling. A dwelling is a £ place or house in which a person lives.’ Webster’s Dictionary. A private dwelling is a place or house in which a person or family lives in an individual or private state. The words £ dwelling house ’ involve the idea of a house, a residence, where persons five in settled abode. A dwelling house is a ‘ house intended to be occupied as a residence, in distinction from a store, office, or other building.’ Webster’s Dictionary. A private dwelling house is one intended for private living. In these days of apartments, I am not giving to the words a narrow meaning. But a house intended for a private residence or home is not intended for a place for the temporary gathering of diseased persons for treatment. If the covenant means that there shall be erected on the premises only buildings intended for a house or private dwelling, it is the merest evasion to
Reference is made in the prevailing opinion to the fact that there has been no change in the outward appearance of plaintiffs’ building at the southwest corner of Seventy-first street and Madison avenue wherein the three doctors are practicing their profession. In-the case of Booth v. Knipe (178 App. Div. 423) Mr. Justice Laughlin, writing for this court, said (at p. 430): “ The defendant Knipe used the house as his private residence and for an office and for a limited number of his patients. So far as appears externally, the building is a private residence, and is occupied as such by the defendant Knipe. The only external indication that it is not used exclusively as a private residence is his inconspicuous professional sign.”
This court held in that case that the defendant Knipe, who Was receiving a limited number of patients, was not violating the covenant restricting the use of the house wherein he resided as a private residence for one family. An appeal to the Court of Appeals resulted in a reversal of this court and an affirmance of the order of the Special Term granting the plaintiff injunctive relief (225 N. Y. 390). In Booth v. Knipe the lease under which the defendant was occupying the premises was introduced in evidence. It provided that the building was to be occupied “ as a sanatorium and not otherwise,” and the evidence was such as to indicate that the property had been used as a maternity hospital where two or three patients were received at a time. In the case at bar, not only was the lessee of the premises practicing bis profession there, but two other doctors were carrying on their independent practices in the building. Twenty or more patients daily came there for treatment by the various doctors,' often accompanied by nurses and friends. I think the evidence in the case at bar shows a far greater violation of the covenant than that of the defendant in Booth v. Knipe, where the Court of Appeals said (at p. 397): “ By no stretch of language can we say that this is equivalent to use 1 as a private residence for one family ’ (Smith v. Graham, 161 App. Div. 803; affd., 217 N. Y. 655; Barnett v. Vaughan Institute, 134 App. Div. 921; 197 N. Y. 541).”
I think the plaintiffs have failed to show grounds for granting equitable relief in this case. The testimony conclusively shows that the plaintiffs not only have not been damaged by the erection of the defendant’s building, but by the erection of a dwelling house on the property of the defendant the plaintiffs would be injured to a far greater degree. On the other hand, it appears that if the defendants are compelled to tear down their building to satisfy the caprice of the plaintiffs for a very limited period, they would suffer a substantial monetary damage. If this covenant had a long period to run, and if, in fact, the plaintiffs suffered any damages whatever, I would be inclined to favor the granting of the mandatory injunction asked; but here no damages have been suffered, and the time when the plaintiffs may object is brief. At the trial the court asked counsel for the plaintiffs whether the plaintiffs asked damages, to which plaintiffs’ counsel replied: “ We do not stand on money damages here.” It seems to me the whole situation is well summed up in the opinion of Judge Chase in Bull v. Burton (227 N. Y. 101). At page 112 Judge Chase, referring to various authorities, said:
“ They do hold that a court of equity should not do inequity, and that if the granting of an injunction to enforce restrictive covenants will result in inequity it will be denied, and leave the plaintiff to his remedy at law. That is the rule fully established by Trustees of Columbia College v. Thacher (supra). The court speaking by Judge Danforth, referring to a court of equity, say: ‘ It gives or withholds such decree according to its discretion in view of the circumstances of the case and the plaintiff’s prayer for relief is not answered, where, under those circumstances, the relief he seeks would be inequitable.’ (p. 317.)
*157 “ The court further say: ‘ 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. But on the other hand the defendant has exhibited such change in the condition of the adjacent property and its character for use as leaves no ground for equitable interference, if the discretion of the court is to be governed by the principles I have stated, or the cases which those principles have controlled.’ (p. 319.)
“ The McClure case was an action to restrain the defendant from erecting an apartment house in alleged violation of a restrictive covenant. The Special Term dismissed the complaint. The judgment of the Special Term was reversed in the Appellate Division. This court modified the judgment of the Special Term so as ‘ to declare that it is without prejudice to an action at law,’ and ■ as thus modified affirmed it.
“ The Batchelor case [Batchelor v. Hinkle, 210 N. Y. 243] was brought to enforce a restrictive covenant. After the making of the covenant the buildings in the neighborhood were entirely changed in character and the court held that the covenant should not be enforced in equity but that the plaintiff should be remitted to an action at law for her damages.
“ The Jackson case [Jackson v. Stevenson, 156 Mass. 496] was a bill in equity brought to enforce the restrictions in a deed but on account of changed circumstances the court refused to grant the injunction but the bill was retained for the purpose of assessing the plaintiff’s damages as in an action at law.
“ In the Deeves case [Deeves v. Constable, 87 App. Div. 352] it is held that the easement therein mentioned had been extinguished.
“ The Roth, Schwarz and Schefer cases [Roth v. Jung, 79 App. Div. 1; Schwarz v. Duhne, 118 id. 105; Schefer v. Ball, 120 id. 880; affd., 192 N. Y. 589] were each to obtain injunctive relief against restrictive covenants and the rule stated in the Columbia College case was restated and enforced.”
I do not think this case is one where in justice and equity, in view of the absence of any substantial benefit to the plaintiffs and in view of plaintiffs’ violations of the covenant themselves, and where it appears that enforcement of the covenant would work severe hardship upon the defendants without corresponding advantage to the plaintiffs, the court should enforce by its peculiar mandate the restrictive covenant in question.
This court is about to grant the plaintiffs the mandatory injunc
There is evidence showing that conferences between the parties were held and efforts made “ to arrive at an amicable settlement ” of this controversy. As to what “ settlement ” was suggested or would be “ amicable,” we can only surmise, but sufficient appears to give birth to the suspicion that the plaintiffs are now forcing the issue because of their disappointment in not obtaining from the defendant Finch a settlement, monetary or otherwise, for damages which they have not, in fact, suffered. It is suggested in the prevailing opinion that the action of the defendants in the erection of their building was unduly precipitate, and that the defendants had attempted to gain an advantage by erecting their building before the plaintiffs could restrain them. I think the evidence indicates quite the contrary. The defendants’ building was erected during the summer of 1924, and the defendants’ witness Scheinberg, the head of the defendant Joray Holding Company, Inc., testified that the first intimation that there was to be any lawsuit Was in the latter part of September, after the building was up a story and a half. The conference looking to “an amicable settlement ” was after the defendant Finch had returned from Europe on September thirteenth. The summons was not issued until September 23, 1924, and the complaint was verified on that date. The action was not commenced until after the defendants’ building was practically completed, and, as before stated, there was no attempt on the part of the plaintiffs to obtain a restraining order pendente lite. Under the circumstances, I do not think the action of the
The judgment appealed from was right, and should be affirmed, with costs.
Judgment reversed, with costs, and judgment directed in favor of plaintiffs for the relief demanded in the complaint, with costs. Settle order containing findings on notice.