306 N.Y. 507 | NY | 1954
This is an action to enjoin defendants-respondents, the operators of a refreshment stand in the City of New Rochelle, from using vacant portions of their property as parking space for their customers, on the ground that they thereby violate a restrictive covenant.
Respondent Polar Bar, Inc., acquired the property from its own president, respondent Devlin, and, some time later, built a refreshment stand on the plot. The stand itself occupies but a small part of the premises; the balance is devoted to a parking space which, we are told, can accommodate forty-two cars. The space is solely for the convenience of respondents’ customers and parking there by others is not permitted. No charge or fee is levied for parking; all persons making purchases at the Polar Bar pay the same amount for their purchases, whether they arrived by car or not. Customer parking space is unquestionably essential to respondents’ business, for the stand fronts on the Boston Post Road, a heavily traveled six-lane thoroughfare, largely devoted to commercial traffic, which makes access by pedestrians difficult. Indeed, it is estimated that, in the summer months, 1,000 persons will patronize the shop daily and that, of these, 90% will arrive by car.
“ (1) A commercial garage, or automobile parking lot.
“ (2) A public garage or public automobile filling station.
“ (3) Commercial bottling of non-alcoholic beverages.
* # *
“ (5) Clubs, lodges, and social buildings in which dancing or bowling may be an incidental use; * * *
“ (6) Any use prohibited by the said Zoning Ordinance in the City of New Rochelle in a Class C Business District. ’ ’
The character of the neighborhood has remained substantially unchanged since 1946.
Concededly, both the covenant and the local zoning ordinance — to which reference is made in subdivision (6) of the covenant— permit respondents to operate a refreshment stand. On the other hand, the prohibition in subdivision (1) against a “ commercial garage, or automobile parking lot ” would certainly preclude the business operation of a parking lot if that were the sole use to which the property was put. Thus, the narrow question presented is whether subdivision (1) also encompasses and, by that token, prohibits a parking lot, if it is merely incidental to, a necessary accommodation for the customers of, a permissible business.
When the parties did decide to prohibit incidental uses — whether for parking or other purposes — they knew how to express their intention, as evidenced by subdivision (5) which specifically bans “ Clubs, lodges, and social buildings in which dancing or bowling may be an incidental use ”. (Emphasis supplied.) Having failed to prohibit parking lots for such use, it is reasonable to conclude that it was not their purpose to prevent them.
If there be any lingering doubt that the “ commercial garage, or automobile parking lot ”, proscribed by subdivision (1), does not take in customer parking, it is dispelled by reading it in connection with subdivision (2) which prohibits a “ public ” garage, but, significantly, not a “ public ” parking lot. The parties apparently regarded a “ commercial ” parking lot as distinct and different from a “ public ” lot and quite plainly they did not intend to prohibit the latter. Since that be so, then it follows that respondents have not violated the covenant. (Cf. Best & Co. v. Village of Garden City, 273 N. Y. 564, affg. 247 App. Div. 893.)
The Appellate Division reversed the judgment rendered in favor of appellants and dismissed the complaint on the law alone. In so doing, it held that, since the covenant was ambiguous, it must be construed in favor of a more free use of the property. Because it affirmed the facts found below — which included the finding that appellants refused to permit even an incidental parking lot — appellants contend that the judgment could not properly be reversed unless that finding were also reversed. That is not so. The court undoubtedly concluded that, since there was an ambiguity, it was bound — despite the finding in question — to adopt respondents’ interpretation. In any event, the Appellate Division is not to be taken as having affirmed a finding, such as the one here invoked
The judgment of the Appellate Division should be affirmed, with costs.
Lewis, Oh. J., Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur.
Judgment affirmed.