87 N.Y.S. 125 | N.Y. App. Div. | 1904
The plaintiff brings this action to restrain the defendant from violating certain building restrictions which are alleged to burden with reciprocal easements the properties of plaintiff and defendant at Averne-by-the-Sea, located át Eockaway Beach in the county of Queens. The premises involved in the controversy are situated along-the seashore, and some years ago were* divided in two primary divisions, known as the western and eastern divisions, and these in turn . were subdivided into lots. Lot No. 1 of the eastern division is owned, by the defendant, and the plaintiff owns lots adjacent, where she has. erected an expensive summer residence. The deed under which the defendant holds his premises, and both the plaintiff and defendant derive title from the same source, provides “ that neither the* said party of the second part nor his heirs or assigns shall at any time hereafter erect, maintain or permit any mechanical or mercantile business or any stable or any building other than a dwelling-house on the portion of the said premises lying south of this strip thereof now occupied by the tracks of the South Side Eailroad of Long Island,” etc. At the time of making this original deed in. 1885, in a voluntary partition, the covenant to run with the land,, there was' a single, line of railroad running parallel with the ocean beach, 'and at a short distance therefrom, and the evident purpose* of this covenant was to prevent the construction of business places; between this railroad and the beach. Subsequently this line of rail
. It was urged by the plaintiff, in addition to the above proposition, that the maintenance of an automobile station along this bouleyard, outside of the restricted, portion of the premises, was a common-law nuisance; but the learned court has found to the contrary, and we have no doubt of the correctness of this conclusion. The business of the- defendant appears perfectly lawful and legitimate; he is not violating the covenant restricting the use of the premises, and the plaintiff, having had the most favorable construction of the language in support of her contention, is not entitled to the reversal of this judgment, which might be supported upon yet other grounds.
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.