103 Misc. 620 | N.Y. Sup. Ct. | 1918
The suit, is "brought to enforce through the medium of a permanent injunction a restrictive covenant as to the use of real property. Plaintiff and defendant are the owners of contiguous properties, and derived their titles from the same common owner through mesne conveyances. The relation of the two parcels is shown on the following diagram:
Bach property was conveyed by the Manor Realty Company by a deed containing covenants as to the
If, however, the restrictive covenants in question are not part of a general scheme for the improvement of the property, yet it does not lie in the mouth of the ■defendant to urge that the covenant is not binding upon his property. This for the reason that his deed expressly recites that the title which is conveyed to him is taken “ subject to the covenants contained in former deeds, also subject to provisions of zone restrictions affecting said property.” This provision operates as an estoppel which prevents the defendant from asserting that the property conveyed to him was conveyed free of any restrictions which existed with reference to his property at the date of his conveyance. In other words,'he cannot claim the benefit of the conveyance to him and reject the burdens which he assumes by accepting the conveyance. Kingsland v. Fuller, 157 N. Y. 507, 510. Only if there were no restrictions
“And the said party of the second part, for herself, her heirs and assigns does hereby covenant and agree
“ First. That neither the said party of the second part, nor her heirs or assigns, shall or will erect or permit upon any portion of said premises any building except a detached dwelling house and that such dwelling house shall be constructed for one family only, shall have a cellar and shall not be less that two stories in height, and shall not cost less than five thousand dollars, and shall not have a roof of the character or description known as a fiat roof; except also a building especially designed and intended to be used by a private family for storing an automobile, such building shall conform in architecture and construction to buildings in the neighb'orhood, shall be located in the northwest corner of the plot above described, shall not be built , nearer to the rear or westerly line or the northerly side line of said plot, than five feet.
“ Second. That neither the said party of the second part, nor her heirs or assigns, shall or will erect or permit more than one such dwelling on the premises hereby conveyed, or on a parcel of land fifty feet frontage by one hundred feet in depth, of which the parcel hereby conveyed shall at any time become a part. The party of the first part reserves the right to modify this restriction in other conveyances of gore plots.
“ Third. That neither the said party of the second part, nor her heirs or assigns, shall or will manufacture or sell, or cause or permit to be manufactured or sold, on any portion of the premises hereby conveyed any goods or merchandise of any kind, and will not carry on, or permit to be carried on any portion of said premises any trade or business whatsoever.
“ Fourth. That neither the said party of the second part, nor her heirs or assigns shall or will erect or
“ Fifth. That neither the said party of the second part, nor her heirs or assigns, shall or will erect or permit upon any portion of the said premises any building or part of building within twenty-five feet of the street line of East Seventeenth Street; this covenant shall not apply to steps nor to bay or oriel windows of three feet or less in depth, nor to piazzas upon buildings erected in accordance with the above restrictions of ten feet or less in depth.
“ Sixth. That neither the said party of the second part, nor her heirs or assigns shall or will permit any house to be built upon a foundation higher than five feet above the level of the curb.
“ Seventh. That neither the said party of the second part, nor her heirs or assigns shall or will permit the finished grade of plot at the front wall of the house to be more than thirty inches above the level of the curb.
“ Eighth. That neither the said party of the second part, nor her heirs or assigns shall or will permit any terrace or step between the street sidewalk and the piazza or veranda steps.
“ Ninth. That neither the said party of the second part, nor her heirs or assigns shall or will permit upon any portion of said premises any public or private stable for horses or other animals, or any pig sty, cow shed, hen house, slaughter house, or building, except as above set forth, nor any nuisance of any ldnd, description or nature. The above covenants in each and every particular to run with the land, and shall
These restrictive covenants are thus shown to be real covenants running with the land and binding upon any owner of the property affected by them during the time prescribed for the life of the covenants. The plaintiff’s property was, as has been noted, subject to a similar covenant, and this fact, as I have said, the defendant had notice of when he purchased the property. I am of opinion, therefore, that there • was mutuality of benefit and burden between these two parcels of land under the restrictive covenants creating the reciprocal negative easements which have been recited, and that as to the other parcel each parcel was a dominant as well as a servient tenement; and further that the order in which the restrictions were imposed does not signify. See Beach v. Jenkins, 174 App. Div. 813, 822; Silberman v. Uhrlaub, 116 id. 869, 872. While the text writers are not all agreed that these restrictive covenants are in their nature easements at common law for the purpose of their enforcement through common law remedies, unless the element of privity of estate be present, yet, they all agree that they are easements in equity enforceable, if they run with the land, without regard to privity of estate, but depending solely on the doctrine of notice. See Fowler’s Real Prop. Law (2d ed.) 695 and 702; Sims on Covenants which Bun with the Land other than Covenants of Title, 31, 227. Mr. Beeves speaks of them as negative equitable easements and says: “ They are brought into existence and enforced by courts of equity, for the purpose of working out justice between owners of neighboring lands, and in disregard- of the existence or non-existence of privity, or contractual or conventional relationship of any kind between such neighbors.” See 1 Beeves on Beal Prop. §§ 148, 149.
I have reached the conclusion upon the first point, without any difficulty whatever, that the restrictive covenant does not permit the defendant to use the premises owned by him for the purpose of conducting or carrying on a school under the conditions and in the manner in which he is now doing. It is clearly established by the evidence that the defendant is not using the property for the purpose of a private residence, but that he is using it exclusively for the business in which he is engaged, namely, that of conducting a private school. That this is a violation of the covenant, both in regard to the use of the property as a dwelling house for a single family and as carrying on, or permitting to be carried on,61 on any portion of said premises, any trade or business whatsoever,” is too plain to require argument. The plaintiff’s contention, that the maintenance of a school in which, as in the present case, pupils are taken for pay and teachers are employed to instruct them, amounts to the conduct of a business, is well sustained by the authorities, and it makes no difference that the school is a well-conducted, orderly and useful adjunct to the community life in its neighborhood; the degree of the violation is not material.
The defendant in his answer asserts that the covenant has ceased to be operative on account of a change in the character of the neighborhood. There- is no proof in the case that the neighborhood has undergone
It cannot successfully be contended that the covenant under consideration is applicable only to 'the character and style of the building to be erected upon the defendant’s property. As Jenks, P. J., held, in Goodhue v. Pennell, 164 App. Div. 821, the object of the covenant was not merely to regulate the structure itself as to its exterior, but as to its use as well. The covenant is to be construed with reference to what is the apparent object of the covenant. Clearly, that object in the present case was that the building upon the defendant’s premises should be used for the purpose of a dwelling house for a single family during the life of the covenant, viz.: until January 1, 1925.
We come lastly to the contention of the defendant that the plaintiff is not entitled to enforce in equity the covenant under consideration. The defendant asserts by his answer, and it appeared upon the trial, that before he purchased the property which he owns he had been the tenant thereof for three years beginning in May, 1914, and during those three years had
Judgment will therefore be granted in favor of the defendant upon the merits, dismissing the complaint, with costs.
Complaint dismissed.