34 N.Y.S. 1130 | N.Y. Sup. Ct. | 1895
This action was brought to restrain the erection of a dwelling house which, it was alleged, defendant was constructing in violation of a covenant contained in his deed. The common source of title of both parties is J. Henry Hentz, who, in September, 1888, conveyed a tract of land including the property in question to the defendant John H. Murphy, Richard M. Winfield, and Edward' J. Lucas. The deed from Hentz contained a covenant that “neither the parties of the second part nor their heirs or assigns shall or will at any time hereafter * * * erect any dwelling or other building within thirty feet of a front line.” Thereafter, Winfield and Lucas, by quitclaim deed, conveyed the property to Murphy, who on December 5,1890; conveyed to plaintiff lots described on a map of said tract as Nos. 86 and 87, and said deed contained a covenant on the part of the plaintiff similar to that contained in the Hentz deed. The map referred to in plaintiff’s deed was made after the deed from Hentz, and it designated thereon Summit avenue as a street. Summit avenue was subsequently opened, and plaintiff’s and defendants’ lots fronted thereon. The plaintiff’s was the first house erected on the street. The front wall of her house was placed 29.7 feet from the front line of the lot, and the piazza and steps were wholly within the 30-foot line. The front wall of the defendants* house is 30 feet from the front line of the lot, but there is a bay window which projects 3£ feet within the 30-foot line, and the piazzas and steps project further from the house than the piazza and steps on plaintiff’s house. Four other houses have been built on the same side of Summit avenue as the plaintiff’s house, all upon lots included within the property conveyed by the Hentz deed, and it was conceded by the plaintiff that all of the piazzas and all of the steps on the said houses were built within the 30-foot line of the lots.
It is the claim of the appellant that the construction of the bay window on defendants’ house was a violation of the covenant con
It is unnecessary to consider the other questions discussed by the counsel, as, for the reasons above stated, we are of the opinion that the judgment must be affirmed.