72 N.Y.S. 483 | N.Y. App. Div. | 1901
The defendant is the owner of a plot of land on the northeast corner of Seventy-first street and Park avenue, and the plaintiff is the owner of a house and lot on the southerly side of Seventy-second street. The rear of the plaintiff’s premises abuts on the rear of the defendant’s premises, both being a portion of a block of land between Madison and Park avenues and Seventy-first and Seventy-second streets. This block was owned, prior to April 6, 1880, by Henrietta A. Lenox, and on that day she conveyed it to Tracy and Russell by a deed containing a covenant whereby the grantees covenanted that they would not use the premises for certain specified purposes, “ or any manufactory, trade or business whatever which may be in any wise noxious or offensive to the neighboring inhabitants.” The complaint alleges that, for the purpose of selling this tract of land to the best advantage and inducing purchasers to purchase the same, Tracy and Russell adopted a general plan for the improvement of the block, regulating the manner of its improvement and occupation, and restricting the use thereof exclusively for private dwelling houses, which plan they communicated to the various persons negotiating with them for the purchase of lots in said block, and which was formulated in a covenant intended to bind both the purchaser and themselves and their respective heirs and assigns. This covenant restricted the use of the premises to buildings exclusively of brick, stone or iron, with roofs of slate or metal, not less than four stories in height, to be used and occupied exclusively for private dwelling houses. Tracy and Russell subsequently conveyed a plot of ground, which included the lot owned by the plaintiff, by a deed containing this covenant. Subsequent to the execution of this deed, in March, 1895, Tracy and the executors of Russell conveyed to Edward Kilpatrick the premises on the northwest corner of Park avenue and Seventy-first street, being 102.2 feet on Park avenue and 270 feet on Seventy-first street. This deed contained a covenant by which the grantees covenanted and agreed that they would not erect or build upon the easterly end of said premises, being 95 feet on the street and 102.2 feet on the avenue, or on the plot of ground on the westerly end of said premises, being 50 feet on the street and 102.2 feet in depth, or any part thereof, any building or buildings, except of stone, brick or iron, to be used
The situation, therefore, is that this plot of ground upon which this building is to be erected is free and clear of all incumbrances, except the so-called Lenox covenant against nuisances, so far as there are any express covenants in any deeds affecting the premises in question. The building that is to be erected'by the defendant upon this property is to be used as a residence for the nurses engaged in hospital work, and there is nothing to justify the conclusion that a building so used would be any more obnoxious to the neighboring inhabitants than a building used for a residence for any other class of persons. The proposed building, as stated by the vice-president of the Presbyterian Hospital, is to be used as a dwelling house of the most strict and exclusive character, to be occupied by the superintendent and his family and the nurses of the hospital. “ It is co
So far as the Lenox covenant is concerned, there would seem to be nothing to justify a finding that this proposed use of the property was within the covenant. Assuming that the use to which the defendant was to put the property could be included within the term “ business,” it is not every business that would be affected by this covenant. It is not claimed that this use could be included within any of the specific businesses mentioned in the covenant. To be included within the general terms mentioned, it must be found as a fact that it is a business “ which may be in any wise noxious or offensive to the neighboring inhabitants.” The definition given to such a covenant by the Court of Appeals (Rowland v. Miller, 139 N. Y. 93) would seem to exclude the use to which the defendant intends to put these premises. In that case the court said : “ We cannot suppose that the parties had in mind any business which might be offensive to a person of a supersensitive organization, or to one of a peculiar and abnormal temperament, or to the small class of persons who are generally annoyed by sights, sounds and objects not offensive to other people. They undoubtedly had in mind ordinary, normal people, and meant to prohibit trades and business which would be offensive to people generally, and would thus render the neighborhood to such people undesirable as a place
The defendant purchased the property, basing its right to use it upon the record title, which contains no restriction interfering with
I think, therefore, that there is nothing in these papers that would justify the court in granting the injunction asked for, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.