Goodhue v. Cameron

127 N.Y.S. 120 | N.Y. App. Div. | 1911

INGRAHAM, P. J.

We agree with the referee in his opinion- and in the conclusion which has resulted in the dismissal of the complaint. The clear intention of the parties to the instrument to enforce which this action was brought was to regulate the character of the buildings to be erected upon the premises, and also to restrict the use to which any buildings thereon erected could be thereafter applied. Thus it was provided that there should not be erected on any of the lots owned by the parties respectively, or any part of same, any building or erection other than brick or stone dwelling houses of at least two stories in height, except churches and stables of brick or stone, for private dwellings. In addition to this general covenant providing for the nature of the buildings to be erected upon the property owned by the parties thereto, it was further agreed that the parties would not thereafter erect or permit upon such lots or any part of the same any of the occupations specified or any other use of the property known as nuisances in law. One was a covenant which applied to the character of the buildings to be erected on the property; the other a covenant which applied to the erection or use of a building erected upon the premises. It would seem that the latter covenant was not violated by the erection of the building that the defendant contemplated when the action was brought, but there was clearly an intended violation of the covenant restricting the nature of the building which should therefore be erected upon the premises subject to the covenant. Kitching v. Brown, 180 N. Y. 414, 73 N. E. 241, 70 L. R. A. 742; Clark v. Jammes, 87 Hun, 215, 33 N. Y. Supp. 1020.

When this agreement was executed, the parties must have contemplated that the portions of the restricted area which abutted on other property not restricted would be affected by the erection of buildings or a use of the property of a character other than that to which the restricted property was confined, but, notwithstanding this fact, the restriction was absolute and as much affected property which adjoined unrestricted property as the other property within the restricted area. The fact that the use of the portions of the property adjoining unrestricted property would be affected by the use of such adjoining, property would not justify the owners of the property restricted in violating the covenants which were to control all the property included within the area restricted. I am not prepared to assent to ■ the proposition that the fact that a larger price could be obtained for the use of the property within the restricted area if the restriction was disregarded, or that the price for which such outlying property could be disposed of would be increased if the restriction was removed is a justification for a breach of this covenant. .If a use of any of the property covered by the restrictive agreement would be justified, it would be but a short time when the covenant as affecting the whole property could be safely violated. The parties who have purchased property within the restricted area subject to the restrictions contained in this instrument have acquired it subject to a restriction which insures it being maintained as residential property, and this a court of equity should enforce, where it appears that in consequence of the proposed violation of the restrictive covenant the use of adjacent property for residential purposes is directly affected. The justification for the refusal to enforce this covenant in this action is that the referee has found, and the evidence sustains the finding, that the use of the rear of the plaintiff’s lots does not at all affect the use of the plaintiff’s property as a residence.. Plaintiff’s property is affected by the erection of the structure upon the portion of the defendant’s property which is not restricted, but it seems clear that the fact that the defendant’s building has been extended back to the rear of her lots could not at all affect the use of the plaintiff’s property as a residence, while it would seriously injure the use by the defendant of her property to enjoin the use of the rear of her lots.

These facts appearing, I think a court of equity was justified in refusing to enforce the covenant, leaving the parties to an action at law, if at any time it would appear that the violation of the covenant by the defendant on the rear of the lots did as a fact cause a serious injury to the plaintiff’s property.

The other questions involved have - been fully considered in the referee’s opinion, which we adopt, and for the reasons stated by him the complaint was properly dismissed.

It follows that the judgment should be affirmed on the opinion of the referee, but, as both parties have appealed, without costs.

LAUGHLIN, MILLER, and DOWLING, JJ., concur.

McLAUGHLIN, J. I vote for affirmance on the opinion of the referee.