114 N.Y.S. 623 | N.Y. App. Div. | 1909
Lead Opinion
Plaintiff appeals from a judgment at Special Term in favor of defendant. Plaintiff and defendant are both religious corporations, and both belong to the same religious denomination. The controversy is marked with considerable acrimony, and arises upon a somewhat unusual state of facts. Prior to the year 1897 the Church- of the Transfiguration, defendant herein, whose main church- edifice was and is in Twenty-ninth street in the city of New York, also owned a plot of land about 100 feet square in West Sixty-ninth street on the rear portion of which stood a small chapel maintained by defendant. Circumstances were such that in the spring of 1897 defendant desired to sell this plot and chapel, and to devote the proceeds to paying off certain debts and to other corporate purposes. At the same time St. Stephen’s Church, plaintiff herein, desired to move-uptown and it was proposed that it should.purchase the plot of land and chapel in Sixty-ninth street owned by defendant. The price of $85,000 was agreed upon.- The canon law of the Protestant Episcopal Church, to which both plaintiff and defendant belonged, requires the approval of certain diocesan authorities to the relocation of a church, and Owing to the vigorous' opposition of- certain churches in the vicinity of Sixty-ninth street to the intrusion into the territory of another church, several years elapsed before the consent of the diocesan authorities could be obtained. In the meantime Mr. George W. Quintard, an officer of plaintiff, purchased the property in his own name, paying to defendant $35,000 in cash, and giving a purchase-money mortgage upon the property, to secure his personal bond for $50,0.00. Although Mr. Quintard purchased this property and executed the bond and mortgage as an individual, without any legal authority from plaintiff to act as its agent, or any contract with it respecting the future acquisition of the property, there seems to be no doubt that when he bought it he expected to convey it to plaintiff when the diocesan consent to a relocation had been obtained.
In the summer of 1897 Mr. Quintard expended some $6,000 in repairing the chapel, and on September 21, 1897, entered into a written agreement with. plaintiff whereby the latter was to be entitled. to purchase the property within two years for the price of $85,000, and meanwhile was to have the use and occupancy thereof
The neighborhood in which the church is situated has greatly increased in population, and. the attendance at the church has steadily increased, so that after putting in all the additional sittings possible the plaintiff finds itself hampered in carrying out its church.
It is argued at length on defendant’s brief, and some testimony , was erroneously admitted to sustain the plea, that the covenant was inserted because of a religious sentiment against permitting the property which had once, been used for church purposes to ever be applied to any secular use, and that, in consequence of the restrictions placed upon its use, the property was sold to Hr. Quintard at less than its real value. ' This evidence was irrelevant to any issue presented by the pleadings as they stood when the case was tried. Such, k defense was attempted to be set up, but was demurred to for insufficiency and the demurrer sustained, and no appeal was ever taken, or is now taken from the judgment so sustaining the demurrer. That defense was, therefore, out of the case and no evidencefin support of it should have been received. Having been improperly received it is our 2uty to ignore it. And whatever may
The plaintiff seeks a judgment that the defendant be required to execute a release of the restrictive covenant, or be perpetually enjoined and restrained from seeking to enforce said covenant, and * that upon such release and the payment of the mortgage debt and interest the mortgage be satisfied and discharged. The plaintiff insists in the first place that the covenant is one which can never be enforced by defendant either by an action for damages for its breach, or by in junction to prevent a breach. In Equitable Life Assurance Soc. v. Brennan (148 N. Y. 661, 671) the Court of Appeals, after remarking that it might not be possible to harmonize all the authorities in this country and England on the subject of negative easements, proceeded to state a few general rules which are well settled, one of which is that there must be found somewhere the clear intent to establish the restriction for the benefit of the party suing or his grantor. An indispensable element of an action to enforce such a covenant is that its enforcement will benefit the party suing, or that its violation will injure him, and that he is the party for whose benefit the covenant was made. The violation of the covenant in the present case could not damage the defendant in any legal sense, nor could its enforcement benefit it for it stands admitted by the pleadings that defendant owns no property in the vicinity of plain
The judgment appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
McLaughlin and Houghton, JJ., concurred; Patterson, P. J., and Laughlin, J., dissented.
Dissenting Opinion
I am unable to concur in the reversal of this judgment and am of the opinion that the cause was properly decided at the Special Term. (See St. Stephen's Church v. Church of Transfiguration, 59 Misc. Rep. 560.) The .plaintiff seeks to have the court obliterate from a deed a covenant which was not simply personal between the parties to that deed, but which was solemnly declared to be one which ran with the land. It placed a restriction upon the use of property. The transfer of the property was really made by one religious corporation to another and restricted the use of the property to religious purposes or church uses. While the deed from the defendant-was originally made to Mr. Quintard, it is nevertheless conceded that that gentleman held the title- only until the permission, of the diocesan authorities of Hew York to transfer the property could be obtained.
It is indisputable that by the delivery to and acceptance of the deed by the plaintiff, it became bound to the observance of that • covenant. The court is now asked to destroy it because it is inconvenient to the plaintiff to be bound by it. There is no adjudicated case which is authority for this action, nor, in my judgment, can it ..be supported by principle. The argument of the plaintiff seems to proceed upon the theory that the covenant is a cloud upon title and, therefore, may be removed by a court of equity. A covenant-may be an incumbrance, and Courts of equity have power to remove adverse titles and incumbrances which affect title,-but the essential condition to the exercise, of jurisdiction in such cases is and always has been that the outstanding title or incumbrance, although in form Valid, must as matter of fact be invalid.
I ain not. prepared to assent to the proposition that a covenant
I, therefore, dissent.
Laughlin, J., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.