106 N.Y.S. 129 | N.Y. App. Div. | 1907
The case comes down to this: The defendant Frank C. Kohart (and the appellant only represents him, as the trial judge found) owned four adjoining lots of land. He erected detached . one . ■family dwellings on two of them, and sold ahd conveyed one to each of the plaintiffs. To induce them to purchase he represented to them that each of the two remaining lots were restricted against the erection of any building thereon excepting a private residence. like the two he had built, and promised-that no other kind of building would be erected thereon." Ho covenant to this effect was put in the contracts of sale nor in the deeds of conveyance. This suit was brought to obtain a judgment perpetually restraining the said defendant from erecting ah apartment house on his said land, and the plaintiff obtained judgment. The complaint is also on- the ground of prior restrictive covenants running with the land, but such covenants had become extinct, and the judgment below was put upon the oral representation, and promise only.
In respect of the álleged representation that the land was restricted, it suffices that it is, not alleged that such representation ■ was fraudulent, or that the plaintiffs relied upon it or were deceived by it. It follows that no relief could be given under the head of fraud or of estoppel. The case came down^ therefore, to the enforcement of the oral promise.. That it was not a ground for the jurisdiction of equity.cannot be gainsaid ; it was void (Real Property Law, §§ 207, 224). An easement • in land can be created only by a grant (Wiseman v. Lucksinger, 84 N. Y. 31; Newman v. Nellis, 97 id. 285; Nellis v. Munson, 108 id. 453; White v. Manhattan R. Co., 139 id. 19). The ease of Lewis v. Gollner (129 N. Y. 227) is not applicable. There, ene who was in the business of building
Hiksohbebg, P. J., Jenks and Miller, JJ., concurred.
. Judgment reversed and new trial granted, costs to abide the final award of costs. ' ,.-V