191 A.D. 492 | N.Y. App. Div. | 1920
Lead Opinion
The learned trial justice has considered the objections to the title presented by the plaintiff on the closing day and we agree with his conclusions in his opinion filed. (Goldstein v. Hirsh, 108 Misc. Rep. 294.) We will refer to but one of the objections, to wit, the claim of the plaintiff, vendee, that the restrictive covenant in the deed of 1850 prevented the maintenance of the garage erected upon the premises. This is not the usual case of a vendee who objects to the marketability of a title because of restrictive covenants discovered in the search thereof. The plaintiff knew of the restrictive covenants when he made the contract, and agreed to take the property subject thereto. He knew that the premises were occupied as a public garage and he desired to use them for that purpose. The question presented by the pleadings is not, strictly speaking, whether the title is marketable, but whether the restrictions known to the purchaser, who was also familiar with the location and use of the property, prohibit
The plaintiff agreed to take the property subject to the restrictions contained in the deeds under which defendant held the title. The plaintiff must, therefore, be deemed to have known the facts disclosed by the record (Acer v. Westcott, 46 N. Y. 384), and every other fact which an inquiry suggested by the record would have led up to (McPherson v. Rollins, 107 N. Y. 316; Riggs v. Pursell, 66 id. 193; Kingsland v. Fuller, 157 id. 507; Moot v. Business Men’s Investment Assn., Id. 201; Schnitzer v. Bernstein, 119 App. Div. 47.) The only question arising on this restrictive covenant is whether it prevents the maintenance of the garage.
The covenant in the deed of 1850 applied to a parcel of land which included the premises described in the complaint, and prohibited the erection thereon of buildings for carrying on various trades and occupations commonly described as nuisances, including “ omnibus, livery or cow stable,” and terminating with the words “ or other dangerous, noxious, unwholesome or offensive establishment trade calling or business whatsoever offensive to the neighborhood.” It is evident that in 1850 when the restrictive covenant was entered into, none of the parties had in mind a garage for the storage of automobiles. We agree with the learned j udge at Special Term that the express covenant against “ omnibus, livery or cow stable ” did not apply to this building. When we depart from the occupations expressly prohibited and seek for interpretation of the general prohibition of other “ dangerous, noxious, unwholesome or offensive establishment trade calling or business,” we find the qualifying words “ offensive to the neighborhood.” There is no evidence in the record that the defendant’s garage has been, is or will be offensive to the neighborhood. It is true that plaintiff introduced in evidence the record of the board of standards and appeals of the city of New York containing the resolution permitting the defendant’s predecessor in title to erect a garage upon the premises, which record is said to contain objections to the permit filed by
The judgment should be affirmed, with costs.
Mills and Putnam, JJ., concur; Blackmar, J., reads for reversal, with whom Jenks, P. J., concurs.
Dissenting Opinion
I dissent.
The prohibition against the maintenance of the garage is not found in the use of the word “ stable.” If it be prohibited, it is by the general clause against offensive business. Under the doctrine of noscitur a sociis, that means a business that is
Whether or not the change or alteration in the condition of the neighborhood is such as to render it inequitable specifically to enforce this covenant against one seeking to erect a garage, is, under the case' of Trustees of Columbia College v. Thacher (87 N. Y. 311), also a question which may be the subject of judicial determination. The general rule is that covenants of restrictions are enforcible by specific performance, and the burden rests upon the defendant in such an action to show a condition of the neighborhood which makes it inequitable to enforce them. This is a burden which a purchaser should not be compelled to assume.
I think the title is unmarketable.
Jenks, P. J., concurs.
Judgment affirmed, with costs.