14 N.Y.S. 362 | New York City Court | 1891
The learned judge at special term found all the facts in this case in favor of the plaintiff, but held that such facts did not justify a judgment in his favor. The plaintiff owns and resides in a house on the northerly side of President street in this city, between Seventh and Eighth avenues. The defendant Ervin G. Gollner, on February 19,1890, contracted in writing to purchase a plot of ground on the southerly side of Union street, 100 feet front and rear, and 90 feet in depth on each side, which plot is directly in the rear of the property of plaintiff, and on which Mr. Gollner intended to erect flats. The plaintiff and three adjoining owners of residences on President street, in order to prevent the construction of flats, purchased from Gollner his contract, and paid him therefor an advance of @6,300, though the property was worth only the contract price of $18,000. Gollner agreed in writing to transfer the contract on March 12th, and on March 25th the matter was closed up. The plaintiff claims, and the finding on conflicting testimony is in his favor, that prior to and on March 12th Gollner, in consideration of the payment of the $6,300 and of the execution of the agreement to buy him out, agreed with plaintiff orally that he would not construct or erect any flats in plaintiff’s immediate neighborhood, or trouble him any more. About March 23d Gollner began to negotiate for the purchase of a plot of land on the northerly side of Union street, and diagonally across the street from the plot he had sold, and on April 1st purchased the same, and subsequently commenced the erection of five flats on said premises. On June 28th he transferred the property for a valuable consideration to his wife, who has continued the erection of the buildings. Mrs. Gollner took with full notice of the claim of plaintiff. The plaintiff brought this action to obtain an injunction to prevent the erection of the flats. On the facts, as found below, a strong case is made out against the defendant Gollner. He bought property for $18,000, which was its full value, and threatened to erect flats thereon, whereupon the neighbors, who owned fine residences, and who thought their homes would be injured, paid him $6,300 simply to control the property. As soon as he has closed his bargain he buys a plot of the same size for $20,000 on the side of the street opposite to the lots which be had sold, and commences to build flats. He negotiates with the immediate neighbors of the new purchase, asking a large advance on his purchase price, but is unable to agree with them, and continues the erection of the buildings. If there was any authority which was directly or indirectly in point in favor of the plaintiff, we would have no hesitation, on the facts, in rendering a decision in his favor and against the defendant. We have examined all the authorities cited, but it will suffice to refer to two only. In Tulk v. Moxhay, 11 Beav. 571, 2 Phil. Ch. 774, A., being seised of houses and a garden on Leicester square, conveyed the garden to B., a.ud B. covenanted for himself and assigns not to build in the garden. Held, that purchaser from B. with notice of the covenant was bound by it in equity, although the covenant did not run with the land. This is the leading case in England, and has been repeatedly followed in that country. The second authority to which we shall refer is Hodge v. Sloan, 107 N. Y. 244, 17 N. E. Rep. 335. In that case the facts were briefly as follows: