93 N.J. Eq. 57 | New York Court of Chancery | 1921
The bill is to restrain the defendant from building a two-family house on his lot in a community devoted to residences for one f amity only, in violation of covenants in the deeds from the common grantor to the owners of homes and other lots in the community. The land is in the Clinton Hill section of Newark, and was plotted and laid out in streets and building lots by Joseph P. Sanford and Margaret J. Sanford, his wife, owners by the entirety, and is the northerly section of the plot of building lots described in Sanford v. Keer, 80 N. J. Eq. 240. After the death of her husband Mrs. Sanford rearranged and replotted the lots in the area north of Madison avenue and sold the same upon the representation that the lots lying between Madison avenue and a line three hundred and. fifty feet north of the avenue would be restricted to one-family houses, and incorporated in all her deeds (except in the deed to tire -defendant for his lot, and one to another person who has^ however, built a one-family house) a restriction
“that the said party of the second part [grantee], his'heirs and assigns, shall and will not at any time hereafter prior to the first day of July, 1955, erect, or suffer or permit to bo erected, any dwelling-house upon said premises hereby conveyed to cost less than the sum of $4,500, * * * that said ckoelling-house shall only he used as a private house and for one family only and for no other purpose or use whatsoever.”
There are other restrictions that are not involved in this litigation. There are thirty-eight lots in the restricted district, on
The restriction sought to be vindicated, it will be observed, is upon the use and occupation of tire house and not upon the character of the structure, but as tire exterior of a two-family house differs widely in appearance from that of a one-family house— and I understand the defendant desires to erect the ordinary two-family house on his lot, and this in violation of his own covenant — defendant’s counsel has asked me to pass upon the enforceability of the covenant as though it restricted tire structure to a one-family house.
That the restrictive covenants exacted by tire Sanfords from the purchasers of their lots constituted a neighborhood or community scheme was found as a fact by this court and was approved by the court of errors, and appeals in Sanford v. Kern; supra. The situation remains unchanged, aard that question must be regarded as settled. The duty of lot owners to observe the regulations of a neighborhood scheme is also well settled in this state. DeGray v. Monmouth Beach Club House, 50 N. J. Eq. 329; Sanford v. Keer, supra.
The only question to be decided is, Had the defendaart notice of the scheme at the time he purchased his lot ? If he had, he is, in conscience, bound to respect it. Brewer v. Marshall, 19 N. J. Eq. 537. It is agreed by counsel that he had not actual notice of
The defendant points to the fact that the houses on the plot north of the line three hundred and fifty feet northerly and parallel with Madison avenue are all two-family houses, and that as his lot adjoins the line on the south, he was lulled into a feeling of security that he could build a two-family house, as Mrs. Sanford had represented to him he could. The defendant’s proposed two-family house would be the first invasion of the restricted area. The northerly boundary of the tract above the line is irregular.' It runs from zero on some streets to five building lots on others. The line which marks the boundary between the one and two-family houses runs across the tract at the zero point.
1 conclude that the defendant was charged with notice of the community scheme, and that he is bound to observe its ordinances. I will advise an injunction- restraining him from erecting a two-family house.
Costs to the complainants.