150 N.Y.S. 435 | N.Y. App. Div. | 1914
These are cross-appeals from a judgment of the Special Term in an action to restrain the defendants, perforce of a covenant in a deed; from using their premises in the hotel business, and from the sale of intoxicants thereon. The judgment that restrains such sale is so clearly right that I confine discussion to the other feature of it.
The covenant reads that neither the parties, nor their heirs or assigns, shall at any time hereafter “ erect, cause, procure, permit or suffer to be erected upon the hereby granted premises or any part thereof nor upon any part of the premises
I think that the words of the covenant restrict this land to private dwellings. To give to the word “habitation,” as used in the covenant, its generic meaning as “a place of abode,” is to find in one sentence a restriction to private dwelling houses
The plaintiff prays that the defendants be enjoined from using the premises for carrying on the hotel business. But the learned court found that so much of the covenant as provides that there shall not be erected upon the defendant’s premises “ any braiding other than a building or buildings to be used or occupied or for the purpose of being used or occupied^ as a private dwelling house or habitation,” is a structural covenant, and that the building or habitation erected by the defendant upon his premises does not violate that part of the covenant. I cannot say upon this record whether the structure itself, as to its exterior, violates the covenant, because I have no description thereof save its dimensions, which are much smaller than those of many private dwellings. But I think that the
I cannot say that the plaintiff should be denied relief in that there appears to he no other complaint, or at least there is proof that mhny others countenance this inn. Even considering the expression in Batchelor v. Hinkle (210 N. Y. 251), there is no proof in this case that “ all the interested persons, or the most of them,” are willing, or indeed that any of them is willing, to waive the enforcement of the covenant. By “ interested persons ” I mean property owners of a similar status to that of the plaintiff.
Doubtless the judgment works hardship upon the defendant. But he knew of the covenant, or at least was chargeable with knowledge thereof, and the plaintiff warned him of it and of her purpose to enforce it, before he moved his building onto the land. Before he did so, he exacted from his grantor an indemnity bond against consequences. In fine, he had full warning of the possible consequences and took the risk only after insuring himself against it. It was a conscious invasion, not an innocent occupancy.
The twenty-fifth finding, in so far as it finds that the covenant is not one against occupation, is disapproved, and in place of that part of the finding it is found that the covenant is violated, and in conformity thereto the judgment must be amended so as to restrain the defendants from using the building or permitting it to be used for any purpose other than a private dwelling, and as so modified the judgment should be affirmed, with costs of this appeal to the plaintiff, appellant.
Burr, Thomas, Rich and Stapleton, JJ., concurred.
Judgment modified in accordance with opinion and as so modified affirmed, with costs of this appeal to the plaintiff, appellant.