158 Misc. 672 | N.Y. Sup. Ct. | 1935
In the year 1927 Charles S. Rice, the owner of about eighty acres of land in the town of Schodack, N. Y., conveyed to the defendant a small portion thereof containing forty rods and seventy-nine square feet. The deed restricted the defendant from erecting or using any building on the property conveyed “as a public garage or filling station ” and provided that for a violation of such restriction the deed should be void and the land described therein should revert to the grantor.
In 1932 said Charles S. Rice executed to defendant another deed of the same premises the declared purpose of which was to correct an error in the description of the premises in the former deed and also to substitute for the provision therein that for a violation of said restriction the premises should revert to the grantor the following provision, viz.: “And this conveyance is made subject to said restriction and covenants and shall be construed as covenants running with the land and shall be binding upon said party of the second part, his heirs and assigns forever.” Such deed restated the restriction contained in the. former deed against constructing or using a building as a public garage or filling station.
Between the execution of said two deeds to defendant said Charles S. Rice conveyed to a number of different parties small portions of his eighty acres, each deed containing similar restrictions as in the deeds to defendant against garages and filling stations except that in deeds to one Rose and to one Barnett the language of the restrictive clauses was different, that of the latter being against “ a public repair garage or repair garage.” Plaintiff is the successor in title to all of said eighty acres not conveyed by said Charles S. Rice as aforesaid.
In 1933 defendant constructed a building on the premises conveyed to him as aforesaid and is using it not for the storage of automobiles but for repairing them for hire. Neither is he operating a filling station. He bases his right to repair cars for hire on the meaning of the word “ garage.” He contends that its meaning is limited to the storage and does not include the repairing of cars. This contention is apparently based on the definition of the word as contained in certain dictionaries. But the word is of comparatively recent date in our language and those definitions were formulated when automobiles were few in number and garages
The above definition is now contained in “ Words and Phrases,” fourth series, volume 2, page 142. And in Abbott v. Steigman (263 Mass. 585, at p. 588; 161 N. E. 596) the court said: “A garage erected for the purpose of selling oil, tires and other automobile accessories usually sold in a public garage, and for the repair of tires, is to all intents and purposes a public garage, as distinguished from a private or community garage, and the trial judge in substance so found. He rightly ruled that such use was a violation of the restriction.”
I think that in the common speech of people garages are buildings where cars may be repaired. It is a matter of common observation that scattered throughout the country beside most any main thoroughfare are numerous buildings, large and small, displaying over their entrances the word “ garage ” where cars are repaired and in many instances that is the main if not the only business contained therein. On the trial of this action there occurred a striking instance of the fact that this building under consideration would ordinarily be regarded as a garage. Defendant’s counsel was cross-examining the witness Baker and in questions and answers counsel and witness each repeatedly called the building a garage. This is not mentioned in criticism but merely as an illustration of the point that people would naturally think and speak of the building as a garage.
That defendant understood that the restriction in his deed prevented him from repairing cars is evident from the following facts. In the year 1921 he occupied a building of his grantor on the property subsequently conveyed to him on which building appeared the sign “ Point Garage ” and where he repaired cars for hire. Beginning in the year 1927 and continuing until he constructed the building in question in 1933, he conducted the business of repairing cars in another building on the premises of plaintiff which also displayed the sign “ Point Garage ” and defendant testifies, “ I remodeled that garage,” and again, “ I put the sign ' Point Garage ’ on it.” So that although there is no claim that
I recognize the principle that doubts and ambiguities in restrictive clauses are to be resolved against the grantor, but cases which declare that principle also assert the effort of the courts to ascertain the intent of the parties as in all other contracts. (Bull v. Burton, 227 N. Y. 101, 111; Clark v. Devoe, 124 id. 120, 124; Peterson v. City of New York, 235 App. Div. 41, 44; Schuman v. Schechter, 215 id. 291, 293; Kitching v. Brown, 180 N. Y. 414, 427.) In the last-mentioned case it was said in speaking of restrictive covenants, “ The primary rule of interpretation of such covenants is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met.” The evidence leaves no doubt that the grantor of the deeds to the defendant intended to restrict him from repairing cars and that the defendant so understood it.
The defendant stresses the circumstance that in a deed to one Rose and in another deed to one Barnett the same grantor used the expression “ repair garage ” in the restrictive clause and argues that the grantor would have used the same expression if he had intended to restrict defendant from repairing cars. This is not the correct inference. The use of the expression “ repair garage ” indicates that the grantor understood a garage to be a building where cars are repaired and he distinguished between repairing and storing cars. So when, for instance, in the Barnett deed he used the expression “ repair garage ” he did not thereby prevent him from using a garage for storage or housing purposes but only for repairing purposes. In the case of defendant he used the general expression “ public garage ” which includes both housing and repairing.
Defendant alleges as a further defense that the character of the locality, due to the erection of certain structures, has changed to such an extent as to make the remedy by injunction inequitable. To this there are several answers. First, all the changes occurred
The plaintiff is entitled to judgment restraining the defendant from operating his building as a public garage, including the repairing of automobiles for hire, together with costs of the action.