McClure v. Leaycraft — 97 A.D. 518

Majority

p. 518

John McClure, as Trustee of Julia P. Kirkland, under the Will of Charles P. Kirkland, Deceased, Appellant, v. Robert J. Leaycraft, Respondent.

Headnote

Bestrictive covenant—not held to a/pply only to “ tenement ” houses, where “apartment” and “ community” houses are mentioned.

An agreement made November 9, 1886, with reference to land located in the city of New York, contained a covenant on the part of the party of - the first part, his heirs and assigns, “that neither he nor they shall, or will at any time hereafter erect or permit upon said premises, or any part thereof, any tenement, apartment or community house. ”

It provided that the covenant should run with the land and that all deeds of the premises executed by the party of the first part or his heirs should contain similar covenants.

In December, 1886, another instrument was executed between the same parties, reciting that the parties desired to modify and limit the covenant, and providing “that the said covenants against nuisances and regulating the character of any buildings that may be erected upon the several premises * * * shall

, be modified by excepting churches from such covenants and restrictions and allowing the erection upon any part of said premises any brick or stone building to be used as a church, and as so modified said covenants [and restrictions shall be binding upon the parties hereto, their respective heirs and assigns, • and shall bind said lands and each of them for the period of twenty-five years from said 9th day of November, 1886, and from and after the expiration of said period of twenty-five years the parties hereto * * * release and discharge the other, their respective heirs and assigns from the said covenants and restrictions contained in said deed and agreement, except as far as any liability may have been incurred for violation of any of said covenants before the expiration of said period, and do covenant and agree that after the expiration of said period the said lands and each of them shall be entirely released and discharged from the said covenants and restrictions.”

In an action brought before the expiration of the period of twenty-five years mentioned in the second agreement to restrain the construction of an apartment house upon the premises affected by the instruments, it was

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Held, that the modification of the original agreement conclusively established that it was the intention of the parties to make the restrictive covenant to endure only for a comparatively short time and during that time to have such covenant strictly enforced;

That, as the covenant specifically mentioned “apartment” houses and “community ” houses as well as “ tenement” houses, and as apartment houses were well known in New York city in the year 1886, it could not be said that the parties intended the restrictive covenant to apply only to tenement houses; That, consequently, the fact that the apartment house was not a tenement house in the sense in which that word was understood at the time the covenant was made, or that in the immediate neighborhood of the land affected by the covenant changes had taken place in the character of the buildings erected and in the uses to which property was put, afforded no reason for withholding an injunction restraining the construction of the apartment house.

Appeal by the plaintiff, John McClure, as trustee of Julia P. Kirkland, under the will of Charles P. Kirkland, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kew York on the 25th day of March, 1904, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

David Mg 0 lure, for the appellant.

D. L. Kraus, for the respondent.

The plaintiff is the owner, as trustee, of a lot of land, with the building thereon erected, known as Ko. 464 West One Hundred and Forty-fifth street, in the city of Kew York. He brought this action to enjoin the defendant from erecting on premises on the southwest corner of One Hundred and Forty-fifth street and St. Kicholas avenue, in the city of Kew York, a six-story apartment house. Both pieces of property are affected by a covenant relating to the character of buildings to be erected on the land owned by them respectively. Those covenants are contained in an instrument dated the 9th of Kovember, 1886, made between William H. De Forest of the one part, and True W. Hoyt of the other part, and in which it is specifically provided that the party of the first part; that is, Mr. De Forest, for himself, his heirs, etc., covenants and agrees, among other things, “ that neither he nop

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they shall or will at any time hereafter erect or permit upon said premises, or any part thereof, any tenement, apartment or community house; ” and it is further provided in express terms that the covenant shall he deemed to run with the land, and that all deeds of the premises, or any part thereof, executed by the party of the first part, or his heirs, shall contain similar covenants.

It is beyond question that the land of the defendant is affected by that covenant. In December, 1886, there was another' instrument executed between the same parties, in which mention is made of the covenant just referred to, and in which it is recited that the parties desired to modify and in effect limit the covenant, and thereupon they proceed to make certain modifications as follows : They covenant and agree “ that the said covenants against nuisances and regulati/ng the character of any buildings that may be erected upon the several, premises * * * shall be modified by excepting churches from such covenants and restrictions and allowing the erection upon any part of said premises any brick or stone building to be used as a church, and as so modified said covenants and restrictions shall be binding upon the parties hereto, their respective heirs and assigns, and shall bind said lands and each of them for the period of twenty-five years from said 9th day of November, 1886, and from and after the expiration of said period of twenty-five years the parties hereto * * * release and discharge the other, their respective heirs and assigns from the said covenants and restrictions contained in said deed and agreement, except as far as any liability may have been incurred for violation of any of said covenants before the expiration of said period, and do covenant and agree that after the expiration of said period the said lands and each of them shall be entirely released and discharged from the said covenants and restrictions.”

The defendant was proceeding to construct the apartment house upon his premises, and had filed plans therefor with the building department. The plaintiff then brought this action. On the trial the court dismissed the complaint on the merits. From the judgment entered thereupon this appeal is taken.

It may be assumed at once that the intended structure is not a tenement house, in the sense in which that word was understood at Or before the time this covenant was entered into. It may also be

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assumed that in the immediate neighborhood of the land affected by this covenant changes have taken place in the character of buildings erected and in the uses to which real property is put.

But those circumstances furnish no reason for withholding an injunction in this case, or for not enforcing a covenant the terms of which are so precise as this, and which was apparently entered into with deliberation and was modified so as to change it from one that would run with the land in perpetuity to one which would expire within twenty-five years. The modification of the agreement shows conclusively that it was the intention of the parties to make the restrictive covenant endure only for a comparatively short time, but during that time to have it strictly enforced. The change in the character of the neighborhood, therefore, furnishes no reason why an injunction should not issue in this case, and what was held in Trustees of Columbia College v. Thacher ( 87 N. Y. 311 ) has no application; for here the interpretation to be given to the instruments is clear as is also the breach of the covenant; and, as was said in the Columbia College case, quoting from Tipping v. Eckersley (2 K. & J. 264, 270), the mere breach of the covenant affords sufficient ground for the court to interfere by injunction unless other and graver considerations control.

There can be no question, we think, of the construction to be given to this covenant. It is manifest that it was intended to prevent the erection of other kinds of buildings than such as were understood to be “ tenement ” houses at the time the covenant was made or modified. All the cases in which injunctions have been refused to restrain the building of apartment houses under covenants referring to tenement houses, have been decided upon the ground that it was the intention of the parties making the covenant to refer only to that description of a house to which the word “ tenement ” applied at the time the instrument containing the covenant was executed. Such was the case of White v. Collins Building & Const. Co. ( 82 App. Div. 3 ) and others might be cited. But in the covenant under consideration there is an enlargement of the prohibition. The erection of tenement houses is not only prohibited, but “ apartment houses ” and “ community ” houses come under the interdict. It is idle to say that the parties did not intend the restriction to apply to something more than what were distinc

p. 522

lively known as “ tenement ” houses in contradistinction from other buildings. The words cannot by any reasonable interpretation be used as synonyms. Apartment houses were well known in New York city in the year 1886. The defendant’s land is bound by the covenant and the plaintiff is entitled to have it enforced for the few years of its survival under the modified agreement.

The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., O’Brien, Hatch and Laughlin, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Trustees of Columbia College v. Thacher 87 N. Y. 311 N.Y. 1881-01-17 p. 521