156 N.Y.S. 1016 | N.Y. App. Div. | 1915
The action was brought under the provisions of section 1638 et seq. of the Code of Civil Procedure to obtain an adjudication that the defendants have no claim against property owned by the plaintiff, namely 36 and 38 East Sixty-second street in the borough of Manhattan, by reason of a certain restriction or so-called set-back covenant contained in an agreement made by one Henry A. Cram to one Charles Buek, dated May 19, 1880. The defendant Louise J. Denny is the owner of premises No. 32 East Sixty-second street and the defendant Thomas Denny is her husband. The defendant Oliver J. Wells is the
The defendants Wells in their answer pray that the court determine the rights of the other defendants against their premises No. 34 and the rights of these defendants against each of the other parties to this action and against the premises in which they are severally interested so far as concerns said building line.
The defendants Denny in their answer demand judgment that the complaint be dismissed, with costs, and that the court determine that the said agreement affects, relates to, restricts and limits the premises of the plaintiff and of the defendant Wells, being Nos. 34, 36 and 38, and that the defendant Denny is the owner of the easement created by said agreement and is entitled to compel the observance of the terms and provisions of said agreement by the plaintiff and the defendant Wells and that such easement is appurtenant to the ownership of 32 East Sixty-second street and binds premises Nos. 34, 36 and 38 East Sixty-second street in whosesoever ownership they may be.
The following diagram shows the various properties referred to in the complaint with the names of the owners thereon:
The property outlined within the double lines on this diagram was the property conveyed by Henry A. Cram to Charles Buek.
In 1880 Henry A. Cram owned all the property constituting
The contract of sale proceeded: “This restriction to be limited to four feet. Possession of said premises to be given simultaneously with the execution and delivery hereof. And it is understood that the stipulations aforesaid are to apply to and bind the heirs, executors, administrators and assigns of the respective parties.”
Buek took possession at once and began the excavation on the Madison avenue corner. Before the deed had passed plans had been drawn for his development of the property. On the eighteenth of May Oram and his wife executed a warranty deed of said premises and simultaneously therewith delivered an agreement, the two instruments being recorded at the same time, May 28, a. d. 1880, in liber 1542 of Conveyances, page 394. The agreement between Oram and Buek provides:
“ That the said party of the first part is the owner in fee
“Now, therefore, in consideration of the sum of one dollar, lawful money of the United States of America in hand paid by the said party of the second part to the said party of the first part the receipt whereof is hereby acknowledged the said party of the first part covenants and agrees to and with the said party of the second part, his heirs, Executors and Administrators, that he, the said party of the first part, his heirs and assigns will not erect or cause or permit to be erected at any time hereafter on the lot adjoining the said premises of the party of the second part on the East any building within forty feet of the front of said lot except of brick or stone, with roofs of slate or metal, and will not erect or permit upon any part of the said lot any stable [then follows the ordinary covenant against nuisances].
“ And the said party of the first part for himself, his heirs and assigns doth further covenant and agree to and with the said party of the second part, his heirs, Executors and Administrators, that neither the said party of the first part, nor his heirs or assigns shall or will erect or cause or permit to be erected on said lot, any building the front walls of which shall extend out beyond the front line of the building which may be erected on the above described premises of the party of the second part.” (And then the words stricken out “ until the party of the second part shall have sold the premises erected by him.”) Then it proceeds:
“This restriction to be limited to four feet.”
There was a further agreement made on the 28th day of May, 1880, and recorded on the same day, for a party wall, which contained the following:
“Whereas, the said party of the first part [that is, Buek] is proceeding to improve this said plot of land by the erection of dwelling houses thereon one of which is to front on said Sixty-second Street and to adjoin on the west the said other vacant
Buek laid out the plot so bought from Oram into six lots, and erected dwellings thereon, four of them facing on Madison avenue, the southerly one being eighty-six feet in depth, and the three others sixty-three feet in depth, and two lots on Sixty-second street, No. 30 having a frontage of twenty-three feet and a depth of eighty-two feet six inches and No. 32 having a frontage of twenty-one feet and one hundred and five-tenths feet depth. The building on the comer of Madison avenue and Sixty-second street, 689 Madison avenue, had its street side or north wall coincident with the building line of Sixty-second street, but the buildings erected and now known as 30 and 32 were set back four feet from the building line. These were private houses, four stories high, with brown stone fronts. The defendant, Mrs. Denny, owns 32, the easternmost of the houses erected by Buek, having acquired title from Mrs. Bangs by deed dated June 5, 1902, in which deed it was expressly recited that said conveyance was “ subject, nevertheless, to any existing covenants and restrictions as to buildings and against nuisances and party wall agreements affecting the above described premises, or any part thereof.” About a year after the sale to Buek, Oram sold the sixty feet next to the east, being the land now occupied by Nos. 34, 36 and 38, each of
The lot now No. 38 was conveyed to Bussell and Wray as tenants in common by deed of Cram dated June 14,1881. This deed did not contain the reference to the set-back agreement.
On the same day, 14th of June, 1881, Bussell and Wray as parties of the first part and Cram as party of the second part entered into an agreement, which provided: “Whereas the said parties of the first part are the owners in fee of a plot of land situate on the south side of Sixty-second Street beginning at a point one hundred and seven feet easterly of the southeasterly comer of Madison Avenue and Sixty-second-Street being sixty feet on Sixty-second Street and the center line of the block and one hundred feet and five inches in depth. And whereas the party of the second part is also the owner in fee of another vacant plot of land fronting on Sixty-second Street and adjoining on the east the plot of land above described the dividing line between the said two plots of land being the line running from the southerly side of Sixty-second Street to the said center line of the block at the distance of one hundred and seven feet easterly from and parallel with Madison Avenue aforesaid. And whereas said parties of the first part are proceeding to improve said plot of land by the erection of dwelling houses thereon adjoining on the west the said other vacant plot of land belonging to the said party of the second part upon which he or his assigns may at some future time erect a building. And whereas the respective parties hereto have agreed
Bussell and Wray immediately improved the sixty feet thus acquired by building thereon the three houses, 34, 36 and 38, being of the same general size, style and materials as 30 and 32 and having their front walls, on the same line, thus making a row of five houses substantially uniform in general appearance and exactly uniform in the distance of their front walls from the building line. These houses passed by mesne conveyances, No. 34 to the defendant Wells and Nos. 36 and 38 to plaintiff, Mrs. Porter. Both of her deeds are expressly subject to the agreement of 1880 between Cram and Buek. She acquired title in 1902 and went to live in No. 36. The Porters called the attention of the Dennys to No. 32, and before title was taken Col. Denny discussed the question of the set-back agreement with Mr. Porter, who assured him that he had no intention or desire to build out in front of his house. Subsequently he asked permission to do so and there was a question of pecuniary consideration between them, and Col. Denny declined to give the permission and the Porters acquiesced. It appears also that Mr. Wells, who owned No. 34, also asked similar permission with like result, and he also acquiesced and Wells and the Porters built their extensions in the rear.
The learned court decided that the agreement does not affect
The Wells, while acquiescing in the finding that their property is subject to the restriction, claim that they have rights by reason thereof as against the property of Mrs. Denny on their left and the Porters on their right, and appeal, as does Mrs. Denny, who claims that she has rights by reason of the restriction against not only the property of Mr. Wells next to her, but that of the Porters, owning 36 and 38 as well.
In my opinion the whole plot of sixty feet remaining in Cram after his conveyance to Buek is subject to the restriction “that neither the said party of the first part [Cram] nor his heirs or assigns shall or will erect or cause or permit to be erected on said lot [meaning the whole lot] any building the front walls of which shall extend out beyond the front line of the building which may be erected on the above-described premises of the party of the second part. * * * This restriction to be limited to four feet.”
The dominant estate was that of Buek. The rest of the plot was servient thereto. So long as the building on the dominant estate is set back four feet the owners thereof have the right to insist that the buildings on the other three parcels, part of the sixty feet referred to, shall not be extended beyond that front. In view of the whole history of this transaction, and the various papers recorded, I do not believe this restriction was limited to the Wells property, the twenty-foot lot carved out of the sixty feet after the conveyance to Buek.
“There is no surer way to find out what parties meant, than to see what they have done.” (Insurance Co. v. Dutcher, 95 U. S. 269, 273; cited with approval in Nicoll v. Sands, 131 N. Y. 24.)
“Practical construction by uniform and unquestioned acts from the outset, especially when continued for a long period of time, is entitled to great, if not controlling weight, for it shows how the parties who made the contract understood it. If they do not know what they meant, who can know ? Such a construction is presumed to be right, because it was made by the parties themselves when under the influence of conflicting interests. * * * As we recently said: ‘When the parties to a contract of doubtful meaning, guided by self-interest, enforce it for a long time by a consistent and uniform course of conduct, so as to give it a practical meaning, the courts will treat it as having that meaning, even if as an original proposition they might have given it a different one.’ (City of New York v. New York City Ry. Co., 193 N. Y. 543, 548.)” (Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1, 14.)
It follows that the judgment against Mrs. Denny is erroneous. She as the owner of lot 32, the easterly lot of the plot conveyed to Buek, is entitled to assert and maintain as against the property of the plaintiff the restrictive covenant running with her land, and the decision that her claim is unjust is not only not supported by the evidence, but is contrary thereto. As between the plaintiff and the defendant Wells, however, I do not think there are any mutual rights. The covenant while running with the land was personal to Buek, his heirs and
Mrs. Denny’s property is, therefore, the dominant tenement. The plaintiff’s and the Wells’ property are servient tenements. In Korn v. Campbell (192 N. Y. 490), in considering restrictive covenants, the court divided them into three classes and said: “The second class embraces those cases in which the grantor exacts the covenant from his grantee, presumptively or actually, for the benefit and protection of contiguous or neighboring lands which the former retains. In such cases the grantees, if there are more than one, cannot enforce the covenant as against each other, although the grantor, and his assigns of the property benefited, may enforce it against either or all of the grantees of the property burdened with the covenant. ”
In the case at bar the covenant was given by the grantor to protect his grantee Buek from erections on the plot remaining in the grantor of buildings beyond the set-back line. It seems to me that there is no difference in principle whether the covenant was made by the grantee to the grantor to protect his property or by the grantor to the grantee to protect the latter’s. This proposition has been well expresssed in a note in 37 Lawyers’ Reports Annotated (N. S.), 12, at page 23, where it is said: “Another, but much rarer, class of cases in which restrictive covenants may be enforced by persons not parties thereto is that in which a vendor, instead of imposing the burden on the property sold for the benefit of that retained, reverses the servitude, laying the restriction on the land retained for the benefit of the land sold. It would seem that the same reasoning ought to apply as well in the one case as the other, and that the rule should here be that such restrictions may be enforced by the grantees of the covenantee against the covenantor or his grantees, but that an action may not he maintained to enforce the restriction between grantees of the servient estate.”
There is some doubt whether such right based upon a personal covenant is properly the subject of an action under section 1638 of the Code, but that question has not been raised or argued before us, and all of the parties have submitted their respective claims and in their pleadings prayed for the judgment which they think they are entitled to. We, therefore, decide the case as it is presented to us. The judgment in favor of the plaintiff should be reversed and the complaint dismissed as to the defendant Denny, and judgment directed for her in accordance with this opinion. Many of the findings must be reversed and new findings made, the decision embodying which will be settled on notice. Costs and disbursements to the appellants Denny.
Ingraham, P. J., Laughlin, Dowling and Smith, JJ., concurred.
Judgment in favor of plaintiff reversed and complaint dismissed as to defendant Denny, and judgment ordered for her as stated in opinion. Order to be settled on notice.
