Ward v. McCarthy

Headnote

Real property — restrictive covenants — common grantor without power to change terms of covenants in deeds after it parted with title.

Ward v. McCarthy, 202 App. Div. 849 , affirmed.

Appeal from a judgment, entered August 25, 1922, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to enjoin the defendant from erecting three one-story bungalows on his land directly opposite land of the plaintiff upon the ground that the erection of such structures would be a violation of restrictive covenants and negative reciprocal easements governing both properties. It appeared that it was not until after the sale by the common grantor of the lots now owned by the plaintiffs and defendant that any consideration was given to restrictions against one-story dwellings. The Appellate Division held that the common grantor was without power by subsequent action to change or modify the written terms of the covenant contained in its deeds to the premises in question after it had parted with the title thereto.