40th Street & Park Avenue, Inc. v. Fox — 248 N.Y. 527

Majority

p. 527

40th Street and Park Avenue, Inc., Appellant, v. Austin G. Fox, Respondent, Impleaded with Others.

Headnote

Real property — covenants — restriction on kind and height of building to be erected on land — action to remove cloud on title.

40th St. & Park Ave., Inc., v. Fox, 222 App. Div. 667 , affirmed.

(Argued April 4, 1928;

decided May 1, 1928.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial depart-

p. 528

merit, entered December 13, 1927, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought to remove a cloud upon title in the nature of a covenant contained in conveyances made in 1867, 1868 and 1869 forbidding the erection on the land conveyed of “ any building or erection other than brick or stone dwelling houses of at least two stories in height, with the usual yard appurtenances to dwelling houses, except churches and private stables of brick or stone.”

Charles L. Craig for appellant.

George Zabriskie and Charles M. Kritzman for respondent.

Future changes in the character of the neighborhood as now maintained by law and usage may make it inequitable hereafter to enforce the covenant in suit. We deal only with conditions as they existed at the trial. The question whether the Princeton Club has disabled itself, by a breach of the covenant, from enforcing the restriction is not raised by an appropriate exception and is not before us on this appeal.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ., concur.

Judgment affirmed.