177 A.D. 532 | N.Y. App. Div. | 1917
The plaintiff is the owner in fee simple of a lot adjoining that of the defendant upon One Hundred and Fourth street, New York city, upon which is now erected a four-story private dwelling constructed for the use of one family only, and occupied by the plaintiff and her family as a private residence. The defendant is the owner of an adjoining lot, upon which is erected a private dwelling house similar in all respects to that
“ And the said party of the second part for himself, his heirs, executors, administrators and assigns, doth covenant, promise and agree to and with the said parties of the first part, their successors and assigns that he will not at any time hereafter erect, make, establish or carry on or suffer to be erected, made, established or carried on in any manner on any part of the above-described and hereby granted premises any livery stable, railroad depot, slaughter house, tenement house, tallow chandlery, steam engine (except for domestic purposes), smith shop, forge furnace, brass foundry, nail or other iron factory or any manufactory for making glass, glue, varnish, vitriol, ink or turpentine, or for the tanning, dressing, preparing or keeping of skins, hides or leather or any theatre, opera house, brewery, distillery, molasses or sugar refinery, lager beer or concert saloon, or during a” period of twenty years from the date of this deed for any asylum, reformatory or other public or denominational institution, or at any time for any manufactory, trade or business whatever which may be in any wise noxious or offensive to the neighboring inhabitants.”
Upon October 21, 1891, the said Weinberg conveyed to Egbert C. Simonson eight lots in said block excluding from said deed the lot upon the corner of Riverside Drive and One Hundred and Fourth street and the lot upon the corner of One Hundred and Fourth street and West End avenue. That deed contained the following covenants and restrictions: “ And also subject to a covenant against nuisances contained in prior deeds. The party of the second part for himself, his heirs and assigns, covenants and agrees that the first buildings to be erected upon said premises are to be private dwellings constructed for the use of one family only.”
The two lots owned by plaintiff and defendant are included in the property so conveyed. The plaintiff and defendant both
The covenant, as I read it, is purely a covenant of restriction of construction and not of use. The covenant is against first construction, and the plaintiff concedes that the defendant may take down the building and construct a new building in its place for whatever purpose he chooses, but claims that in order to escape the binding force of the restriction a new building must be erected, and the same purpose cannot be accomplished by the use of any substantial part of the building first constructed.
That restrictive covenants are to be construed strictly is settled by a long line of authorities. In my judgment it would be going far beyond the intent of the restriction to hold that in the construction of a new building a substantial part of the old building cannot be used. The grantor deemed it sufficient to provide for a certain construction of the building first erected, deeming that that would be sufficient to accomplish the purpose
I recommend a judgment for defendant, without costs.
Clarke, P. J., Scott, Dowling and Davis, JJ., concurred.
Judgment ordered for defendant, without costs. Order to be'settled on notice.