Bates v. Logeling — 137 A.D. 578

Majority

p. 578

Lillian E. Bates, Plaintiff, v. Charles W. Logeling, Defendant.

First Department,

April 8, 1910.

Headnote

Real property -^-restrictive covenant — erection of apartment house.

There is no violation of a covenant limiting the buildings to be placed upon lands to first class dwelling houses by the erection of a finely built six-story apartment house, costing §75,000 and containing an elevator, telephone service, etc. '

. In any event equity will not enjoin the erection of such apartment house where, since the time the covenant was made, the character of the neighborhood lias changed so that the land is surrounded by common tenement houses, a hospital, café, boarding houses, sanitarium and buildings used for business purposes.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure..

p. 579

Walter Loewenthal of counsel [Sydney Bernheim with him on the brief], for the plaintiff.

Henry A. Blumenthal, for the defendant.

On October 1, 1866, one Jacob Vanderpoel was the owner of certain property situate between Fifty-seventh and Fifty-eighth streets and Second and Third avenues in the city of New Fork, which he conveyed on said date to Mary H. McEvily by deed containing a covenant that the party of the second part, her heirs, grantees and assigns would not erect or permit to be- erected on said lots on Fifty-seventh street any building except first-class dwelling houses. The plaintiff by mesne conveyances is the owner in fee of the premises No. 249 East Fifty-seventh street, sixteen feet eight inches in width by one hundred feet five inches in depth, and the defendant by mesne conveyances is the owner in fee of the premises Nos. 235-241 East .Fifty-seventh street, seventy-three feet in width by one hundred feet five inches in depth. The properties owned by both plaintiff and defendant are part of the property conveyed by Vanderpoel to McEvily.

The defendant has filed plans in the tenement house and building departments of the city of New York for the erection of a six-story elevator' apartment house upon his premises above described. The proposed building is to contain'six apartments on a floor, to be of superior construction, with telephone service, at a proposed rental of about $10 per room, and is to be erected at an estimated cost of $75,000; the front is to be of light brick and limestone. The plans show a handsome and attractive building.

On the north side of Fifty-seventh street on this block there is a bank building, twelve common tenement houses, a throat and nose hospital, a café, one vacant private dwelling house, a boarding house and a sanitarium. The plaintiff’s property is a three-story private dwelling house, the first two floors of which are used for business purposes. On the south side of Fifty-seventh street there is a school house and nine common, ordinary five-story tenement houses. The plaintiff demands judgment restraining the defendant from erecting or constructing upon his premises the said six-story elevator apartment house heretofore described. •

p. 580

This court held in Holt v. Fleischman ( 75 App. Div. 593 ) that the erection of. an apartment, house was not a violation of a covenant to erect a first-class dwelling house;

We thinlc the proposed building, as shown by description and plans, does not violate the restrictive covenant relied upon and that if it did, the character of the street has só changed that equity will not now enforce the covenant by injunction. •

It follows, therefore, that judgment should be entered for the defendant denying the plaintiffs. demand for a permanent in junction,, with costs. ...

Ingraham, P._ J., McLaughlin, Scott and Dowling, JJ., concurred. ’ ' ;

• Judgment ordered for defendant, with costs. Settle order .on notice. 1