Kurtz v. Potter, 60 N.Y.S. 764

Kurtz v. Potter

60 N.Y.S. 764 | N.Y. App. Div. | 1899

Ingraham, J.:

This action was brought to enjoin the defendants from continuing the use of the premises No. 804 West End avenue for any pur-' poses other than that of private families or buildings for churches, according to the terms and conditions of an agreement, and to recover damages for the use of the property in violation of the agreement. The agreement in question was made on November 21,1890, and was executed by one Samuel W. Bowne. The instrument recited that the parties thereto are the owners respectively of land fronting on West End avenue, between Ninety-seventh and One Hundreth streets in the city of New York. The agreement provided that “ the first building erected on said land within twenty years after the date hereof shall be private dwellings of brick or stone not less than three stories in height, planned and adapted for the residence of private families or buildings for churches ; ” that in the meaning and for the purposes of this agreement the buildings commonly known as tenements, flat or apartment houses are not such private dwellings, and that this covenant should run with the land and be binding upon the heirs, executors, administrators and assigns.of the said parties and all the persons *264deriving title from them - respectively. It appeared that the property now in the possession of the defendant at the'.time this agreement was made belonged to one Rettie R. Bowne, the wife of Samuel W. Bowne, who executed the agreement sought to be enforced. Reither at that nor at any other time did Samuel W. Bowne have any title to the premises. ‘ He was called as a witness,, and testified that he bought the property and put it in the name of his wife, Rettie R. Bowne; that he controlled the property, and when it was eventually sold he negotiated the sale, and that all his wife did was to execute the deed conveying the property. There was, however, no evidence that Mrs. Bowne, the owner of the property, authorized her husband to-execute this or any other agreement in relation to it, or that he had any authority from her to sign such an agreement. Assuming that an agreement of this kind would be valid if by parol, or that authority to execute such an agreement could be conferred by parol, there'is in this case absolutely no evidence that there was any such authority conferred upon the husband, or- that the wife, the owner of the property, ever consented to the execution of the agreement. Ror does the agreement itself purport to be the act of the wife, who-was the owner of the property. Assuming that the defendant had notice of the execution of this agreement by Samuel W. Bowne, it-was not an agreement made by the owner of the property, and the person taking title to the property was not bori,nd to assume that-this agreement was intended to or did bind the property of those who were not parties to it. The recording of the agreement gave no notice to the purchasers of the property that the interest or .title of one not a party to the agreement was bound by its provisions. Certainly, without some proof of the fact that Rettie R. Bowne authorized its execution, she would not be bound by such an agreement not executed in her name and not purporting to be her act. She having conveyed- the property by a full warranty deed, not subject to the agreement or not mentioning it in anyway, the purchaser obtained a title to the property free from any obligation imposed by the agreement. A husband has now no title to or interest in the property of his wife, and no authority merely because of the marital relation to dispose of or bind such property in any way. We think, therefore, that, assuming that the Recording Act gave notice to the *265purchaser of this property that Samuel W. Bowne had by the execution of this agreement made a covenant as to the use to which the property should be put, such covenant was not binding upon his wife, BTettie R. Bowne, and did not affect her interest in the property, and that a conveyance by her of the property not subject to such an agreement conveyed a good title to a purchaser free from any obligation to fulfill the agreement.

We also think that there was no evidence to show that the covenant contained in this agreement was violated. The covenant, by its express' terms, related only to the first building that should be erected upon the land. Its sole effect was that the first building erected on said land within twenty years should be a private dwelling of brick and stone, not less than three stories in height, planned and adapted for the residence, of private families, or buildings for churches, and that a tenement, flat or apartment house was not such a building. N othing in the covenant would prevent any one from using the building so erected in any way he pleased, or from removing the building thus erected and erecting upon the premises a building that could be used for any purpose.

We think the learned court below correctly decided the case, and that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson and O’Brien, JJ., concurred; McLaughlin J.. concurred in resuP

Judgment affirmed, with costs.