Bauer v. Gribbel — 2 A.D. 80

Majority

p. 80

Barbara Bauer and Annie B. Tschirhart, Respondents, v. William S. Gribbel and Mary Gribbel, His Wife, Appellants.

Headnote

Deed—covenant not to buildwilhin a certain distance of the street-line—injunction.

Upon an appeal from an order continuing a temporary injunction restraining the erection of a building on the defendants’ lot which adjoined á lot-owned- by the plaintiffs,, it appeared that the common source of title -of both parties came under a deed in which the grantee covenanted that “ the first building or buildings erected on said lot-or on either, any or all of them,, or on. any part of either or all of said lots, shall be not less that two stories in height and that the: front line of -such building or buildings shall be set back at least twelve feet from the line of’ the street fronting the same,” and that the conveyances of the respective lots to the respective parties to the action were made subject to the ,same restrictions. " .

Before the present action was begun there were upon the lots of the respective parties dwelling houses the front line of which was set back twelve feet, from the street line, leaving between the-west side of the defendants’ house and their west .line a vacant space about- .thirteen feet wide upon which the defend- . ants had begun to erect a one-story "building which projected seven or eight feet in front of the existing buildings, to restrain the- construction of which this action was brought.

Held, that it was the purpose of the covenant to establish a building line over the whole front of the lot, and that the building in question was a clear violation, of the covenant;

It seems, that the covenant would not prevent the construction of an outbuilding on the rear of the lots, nor a one-story extension in the rear óf a dwelling house, provided the dwelling house complied with the covenant.

Appeal by the defendants, William S. Gribbel and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of. Kings

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on the 4th day of December, 1895, continuing in force a temporary injunction granted in the action on the 26th day of .November, 1895, until the determination thereof.

Jay S. Jones, for the appellants.

Edward R. Vollmer, for the respondents.

The appellants and respondents are the owners of adjoining property on the northerly side of Arlington avenue in the city of Brooklyn. The common source of title was one Edward F. Linton, who conveyed the property to one Anna M. Beach.

The deed to said Beach contained the following covenant: ■ “ The party of the second part, for herself, her heirs and assigns, hereby expressly covenants that the first building or buildings erected on said lots, or on either, any or all of them, or on any part of either or all of said lots, shall'be not less than two stories-in height, and that the front line of such building or buildings shall be set back at least twelve feet from the line of the street fronting the same.”

The said Anna M. Beach conveyed to the appellants and respondents the lots of land ■ now owned by them respectively, and such conveyances were made subject to the restriction aforesaid as to the building line and the buildings to be erected upon the lots conveyed.

Prior to the commencement of this action there were upon each of the lots aforesaid dwelling houses, which had been erected in full compliance with the covenant aforesaid, the front line of which was twelve feet from the street line. Between the- west side of the appellants’ house and the west line of their lot there was a vacant space of about thirteen feet, upon which the. appellants have commenced the erection of a one-story building, which projects seven or eight feet in front of the dwellings. The original injunction restrained the appellants from continuing the erection of this building, and the order appealed from .continued such injunction until the final judgment in the action.

We are of the opinion that the order should be affirmed upon the merits.

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The meaning and intent of the covenant is plain. It forbids the erection of any building on the lots, or any part of them, in the first instance, unless such building is at least two stories in height and is set back twelve feet from the street line. One evident purpose of the covenant was to establish a building dine, and the restriction in this respect applied to every foot of the land conveyed.

The appellants argue that this construction would prevent the erection of an outbuilding in' the rear of the lots. Such a building would'clearly be within the. letter of the covenant, but it would not necessarily follow that a court of equity would specifically enforce the covenant against such a structure. Whether it would or not, would depend upon the circumstances of each case. (Conger v. N. Y., West Shore & B. R. R. Co., 120 N. Y. 29 .)

The' covenant must have a reasonable construction and one which will carry out the evident intent of the parties."

I do not think it would prevent the construction of a one-story extension in the rear of a dwelling house that in other respects complied with its terms; and possibly it would not prevent the construction of a one-story wing on. the sidefóf a two-story house.' But the building in process of construction extends beyond the building line .and infringes upon the twelve-foot spade, and in this respect it is a. substantial and material violation of the covenant.

, The order must be affirmed,with ten dollars costs and disbursements.

All concurred.'

■Order affirmed, with ten dollars costs and disbursements.

Cases cited

Conger v. New York, West Shore & Buffalo Railroad 120 N. Y. 29 N.Y. 1890-03-18 p. 82