Francis v. Ziering

| N.Y. App. Div. | Oct 22, 1908

Rich, J.:

Defendants’ grantors became possessed of a piece of real property on Bay avenue in 1889, under a deed containing the provision: “And the said party of the second part, for himself, his heirs and assigns, doth further covenant to and with the said party of the first part, his heirs, executors and administrators, that neither the party of the second part nor liis heirs or assigns shall or will ever erect or permit on said premises or any portion thereof any building within ten feet of the land of said Bay Avenue,” and the conveyance to the defendants reiterates this provision. In 1907 defendants erected a stone and brick structure upon said premises, which exténds to the building line of the street beyond the front of the other buildings on the avenue, and it is sought by plaintiff, who is the owner of a dwelling house on the opposite side of the street, to perpetually enjoin the defendants from maintaining a building or structure within ten feet of the northerly line of the street.

We are, at a loss to understand why there should be any disagreement as to the meaning of this clause. There are several- separate covenants contained in the deed. The one under consideration, however, may be construed without reference to the others. It runs with the land, and provides that the grantor, his heirs and assigns, should never erect or permit on said premises or any portion thereof any building within ten feet of the land, of Bay avenue; that is, within ten feet of the street line. When the defendants acquired title to the premises it was subject to this restriction. They undertook to keep the covenant, and cannot complain if neighbors object to its violation. The plaintiff acquired title to the premises owned by her from defendants’ grantor, who was the common grantor of all of the property in that block upon which dwelling houses have been erected, and if she feels herself aggrieved the power of the court may be invoked for relief, and judgment is ordered for'the plaintiff for the relief demanded.

Woodward, Hooker, Gaynor and Miller, JJ., concurred.

Judgment for the plaintiff on submission of controversy, with costs.