LaPlace v. Ruehl

206 A.D. 761 | N.Y. App. Div. | 1923

The following is the opinion delivered at Special Term:

Seeger, J.:

This is an action for an injunction to restrain the defendant Edward H. Ruehl, Jr., from completing and maintaining a private garage upon his premises situate in the city of New Rochelle, N. Y., on the westerly side of Alpha place. The plaintiffs severally own lots adjoining the lands of said defendant on either side. Plaintiff McGill owns lot No. 26 on map of lands of Charles 0. LeCount and Charles W. Harman, the defendant owns lot No. 27 on said map, and plaintiff LaPlace owns lot No. 28 on said map. LeCount and Harman caused said map to be filed on April 1, 1902, in the office of the register of the county of Westchester, and sold all the lots in question and nearly all the lands on the map subject to certain restrictions, whereby the grantees, their heirs and assigns covenanted with the grantors that neither the grantees, their heirs and assigns “ shall or will at any time hereafter build, erect, maintain or keep, or permit to be built, erected, maintained or kept on said land, any bam, stable, cow house, cow or other shed or pen, piggery, hennery, horse, cattle or barn-yard, privy, warehouse, store or shop, or any structure or enclosure of any kind whatever, excepting a dwelling house, and the yard, lawn or garden of a dwelling house, and the fences surrounding the same * * And it is further covenanted that all the foregoing covenants shall run with the land and shall be inserted in all future conveyances of said premises. There were forty lots on the map in question. All but three of these lots were sold subject to the same restriction. These three, being lots Nos. 16, 17 and 18, were sold with restrictions permitting a bam, greenhouse or hennery. Other garages have been built upon this same subdivision, but none on the same side of Alpha place. These garages are not situated so as to be of sufficient annoyance to the plaintiffs to induce them to bring actions to enjoin their maintenance; at any rate so far as the evidence shows no such actions are pending. The garage in question, however, is situated directly adjoining the property of the plaintiffs and is quite a prominent structure located among lawns and gardens and somewhat interferes with the view of the gardens on the block and plaintiffs claim to be annoyed thereby. There can be no question that the building of the garage violates the restrictive covenants. While in 1902, when the restrictions were drafted, garages were not contemplated, the language of the restrictions is very broad and comprehensive and plainly forbids the building and maintenance of any structure or inclosure whatever, except a dwelling house, and the yard, lawn or garden of a dwelling house, and fences surrounding the same. There was no such material change in the neighborhood as to authorize the defendant to build a garage without plaintiffs’ consent and acquiescence. The plaintiffs are not estopped from maintaining this action because there are other garages on the restricted property. They may ignore inoffensive violations of the restrictions and still restrain others that are offensive to them. (Chesebro v. Moers, 233 N. Y. 75; Rowland v. Miller, 139 id. 93.) The exception to the general restrictions in favor of the three lots hereinbefore mentioned, allowing a bam, greenhouse or hennery does not invalidate the restrictions in question. (Beach v. Jenkins, 174 App. Div. 813; Davidson v. Dunham, 159 id. 207.) The plaintiffs are, therefore, entitled to judgment for the injunction restraining the erection and maintenance of the garage and for the removal thereof. So ordered, with costs. Settle findings on notice.