112 N.Y.S. 647 | N.Y. App. Div. | 1908
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
Woodward, Hooker, Gaynor and Miller, JJ., concurred.
Judgment for the plaintiff on submission of controversy, with costs.