215 A.D. 291 | N.Y. App. Div. | 1926
The plaintiff has entered into a written contract with the defendant to sell to said defendant the premises known as 5110 Twelfth avenue, Brooklyn. A full covenant warranty deed is to be given. The contract was in the usual form and made no mention of covenants restricting the use of the premises. On the 27th day of October, 1921, the Parkside Improvement Corporation made a deed to one Morris Schacter conveying 5104 Twelfth avenue. This deed was recorded on the 28th day of October, 1921, and contains the following covenant: “ The party of the first part [Parkside Corporation] covenants and agrees not to rent any store or permit the use of any such store in any one of the three buildings adjoining the above-described premises, known as 1180 51st Street and 5106-5108-5110 12th Avenue, Brooklyn, N. Y. for the purposes of a butcher or poultry shop, as long as the party of the second part conducts a butcher or poultry shop in such premises herein first above described, but upon his discontinuing such poultry or butcher shop, this covenant shall cease and be null and void.” After Schacter bought 5104 Twelfth avenue he personally conducted a poultry and butcher shop there for a few months. Then the butcher and poultry shop was continued by another person as tenant, who is now conducting a butcher shop in the premises. Schacter is no longer the owner of the premises, having conveyed the same to Sarah Schacter in April, 1922.
In the chain of title of the premises contracted to be conveyed, 5110 Twelfth avenue, is found a deed from the Parkside Improvement Corporation to Anton Berger, dated December 5, 1921, recorded December 10, 1921, which contains the following covenant:
The deed from Berger to Schuman, the plaintiff herein, dated February 23, 1923, and duly recorded, did not contain the above restriction.
The defendant, although willing to perform said contract, refuses to accept the title on the ground that the restrictive covenant in the deed from the Parkside Improvement Corporation to Berger is still in force, and that its existence is a breach of the contract. The plaintiff contends that the covenant was personal only to Schacter, the purchaser of 5104 Twelfth avenue, and that it ceased and became null and void when Schacter personally discontinued his butcher shop there.
It has apparently escaped the observation of the parties to this controversy that the covenant in the deed from the Parkside Improvement Corporation to Berger contains no covenant made by Berger, the grantee. The covenant above quoted is a covenant made by the grantor. It may be that, in a proper action for that purpose, the covenant could have been reformed. I think, however, that such an action could not be maintained against the grantee of Berger. However that may be, under the circumstances here disclosed the covenant in the deed to Berger, even if binding upon him, is limited in its application by the terms of the covenant in the deed to Schacter. It is not shown that any covenant similar to the one in the deed to Berger was ever made in any other deed. In fact, it is clear that there was not a general scheme to maintain the character of the neighborhood. The only reason for this covenant that can be adduced from the circumstances is, that the grantor desired to prevent a violation of the covenant in the deed to Schacter. “ 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.” (Kitching v. Brown, 180 N. Y. 414, 427.) Applying this riile to these covenants I think it is clear that the covenant in the deed to Schacter was a personal covenant and terminated when Schacter ceased to conduct a butcher or poultry shop in the premises. The covenant in the deed to Berger was intended, I think, to be a recitation of the previous covenant made by the grantor and then to bind the grantee to an observance thereof. The latter portion of the idea was entirely omitted, and
The plaintiff is entitled to judgment for specific performance of the contract, with costs.
Present — Kelly, P. J., Rich, Jaycox, Manning and Young, JJ.
Judgment unanimously directed for the plaintiff upon agreed statement of facts, in accordance with opinion.
