158 N.Y.S. 229 | N.Y. Sup. Ct. | 1916
The plaintiff and the defendant are the respective owners of two parcels of ground shown upon the maps of “Garden City Estates.” Each derived title from the corporation of that name; which had in the years 1906, 1907, and 1908 purchased 700 acres,of land, or thereabouts, at Garden City, Long Island, and had subdivided the tract into blocks and lots, and improved and developed the property for residential purposes. The improvements consisted in laying out, making, and macadamizing streets and roads, building walks and curbs, setting out trees and shrubs, putting in sewers, and intnv during water, gas, and electrical service. The property was then
“No stable or garage shall be built unless appurtenant to a house on a plot not less than 100 feet in width by 150 feet in depth."
The defendant acquired her title by deed recorded in December, 1913. She or her grantors built a dwelling house upon the plot, and she resides there with her married daughter, who was, before her marriage, Harriet Ware. In May, 1915, the defendant built a garage upon her property. This garage was constructed of sheet metal, like galvanized iron, and painted, although the paint did not match in shade the color o,f the house. The garage was placed back of the house, with its sides parallel with the rear of the house, and the nearer side 2 or 3 feet distant therefrom. The garage has a ridged or peaked roof and four walls, and its door opens from the front, which is on a line with the right-hand, or southerly, side of the dwelling. The garage has no means of access or communication with the dwelling. After the garage had been built a few days, it was attached to the house by boards nailed from each end of its nearer side to the
1 thinkffhis was a violation of the restrictive covenant above recited, within the principles of law which are applicable to such a case. These principles have been stated at length quite recently by Mr. Justice Putnam in Thompson v. Diller, 161 App. Div. 98, 146 N. Y. Supp. 438, and the subsequent opinion which he wrote in Sullivan v. Sprung, 170 App. Div. 237, 156 N. Y. Supp. 332, is not, as I read it, an authority in favor of the defendant here. In the latter case the garage was a lean-to, two sides of which were part of the house itself. It was merely an addition to or extension of the dwelling.
“When the deed was signed we gave little or no heed to the restrictions and did not know what they were. However, if we had read them, I presume we would have signed the contract just the same, as we never expected to own a car. When my daughter and Mr. Krumbhaar were married, the car was among the presents, but not received until last September, and soon afterward went into storage for the winter. The benefit to my daughter, who sits so many hours a do;' at the piano, was so great that we decided that we must make a place to house the car. I therefore engaged a carpenter to put up a small building, but before the work was begun I was told that the restrictions on the property here would debar the building of such a garage. We then cast about in our minds as to what we could do. We could not afford the public garage, and so we finally decided to get a portable garage and attach it to the house if we found it necessary, although we thought, it being portable instead of stationary, it would not come under the head of buildings described in the restrictions.”
The purpose thus frankly declared was persisted in, even when the defendant was informed that her violation of the covenant of her deed would result in an action for an injunction (see Exhibit A of complaint).
The defendant’s breach of the covenant seems to have been deliberate. She evidently thought or was advised that by adopting the plan of using a portable building, instead of one permanently affixed to the freehold, she could disregard an agreement which had become irksome. It is none the less an unlawful act, in that she has put in place on the property a so-called portable building, constructed elsewhere, instead of causing a building to be erected thereon in accordance with her first design. Portability does not necessarily imply transciency, and a violation does not need to be permanent before equity can intervene.
The end sought to be accomplished by the restriction was to prevent the building of any garage upon plots of less than a certain size. The motive may have been to avoid fire hazard or noise from the operation of cars in close proximity to houses on adjoining lots. Whatever the motive, the covenant is plain, and a temporary violation, while' it lasts, is within its purview just as much as a more permanent one.
The plaintiff is entitled to judgment for the relief asked for; but, under the circumstances, I think no costs should be allowed.
Plaintiff’s and defendant’s proposed findings have been passed upon. Let the plaintiff present for signature a fair copy, which shall contain all the findings which have been made for either party.