Beth Israel Hospital Ass'n v. Moses

The owners of four hospitals, namely, Beth Israel Hospital Association, The Salvation Army William Booth Memorial Hospital, .New York Infirmary for Women and Children, and Manhattan General, Inc., all abutting on Stuyvesant Square brought this action on behalf of themselves and other persons similarly situated, to enjoin the construction of playgrounds in Stuyvesant Square. Stuyvesant Square runs from Fifteenth to Seventeenth streets in the borough of Manhattan, city of New York, and is divided by Second avenue into two small squares, each 190 feet by 450 feet.

The plaintiffs and all other owners of property abutting on Stuyvesant Square took title through mesne conveyances from the heirs of Peter Stuyvesant.

Beth Israel Hospital Association owns and maintains a hospital on the east side of Livingston place between East Sixteenth and East Seventeenth streets. This hospital contains 500 beds, with an original ,'nvestment of over $6,000,000 and ministers to the sick poor of the immediate neighborhood.

The New York Infirmary for Women and Children lies on East Fifteenth street and Livingston place, directly opposite the southeast side of Stuyvesant Square. This is a general hospital for women and children, containing about 160 beds, maintained by voluntary contributions.

Manhattan General, Inc., operates a private hospital at Second avenue and Seventeenth street, containing 250 beds.

Two great high schools, one with a student roll of about 4,000 boys and young men, and the other for girls and young women, are just off the square.

The defendant Park Commissioner seeks to place in each of the small squares a playground so as to attract the children from these large public schools and from this section of the city to this square.

The hospitals complain that their inmates cannot escape from the noise which will inevitably be produced by so large a number of children assembled for play, athletics and games.

The only issue before us is whether the covenants and conditions written into this grant are such as to compel the city to maintain Stuyvesant Square as an ornamental or parklike square and preclude the Commissioner of Parks from establishing playgrounds therein.

Stuyvesant Square has an origin and a history peculiar to itself. A determination in this action on the use permissible of Stuyvesant Square will have no effect on the use of other small squares and parks in the city of New York for the reason that apparently Stuyvesant Square is the only public square in the city arising from dedication by private grant. To all other parks and squares it would seem the city has taken title by purchase or condemnation.

The plaintiffs in their complaint set forth their ownership and use of the lands fronting on the square, the dedication of the- square by Peter G. Stuyvesant in September, 1836, the subsequent purchase by the plaintiffs of their property, the erection of their hospitals, in reliance upon the conditions and covenants in the grant, the playgrounds planned in the square by the Commissioner of Parks in violation of the conditions of the grant, and pray for a judgment enjoining the construction of the playgrounds.

The defendants in their amended answer, after denying certain allegations of the complaint, allege as a first defense that Washington Square, in September, 1836, was planted with shade trees and shrubbery as a place of outdoor recreation, and that Stuyvesant Square has been for several years deteriorating, and that the playgrounds are designed for its improvement. For a second defense, defendants allege that an action at law for damages was brought by Peter Stuyvesant in 1839 and a judgment recovered in May, 1840; through recovery of this judgment, the conditions in the deed of dedication respecting the manner in which Stuyvesant Square should be inclosed and improved were thereupon merged in this

The trial court found that the intention of Peter G. Stuyvesant in dedicating Stuyvesant Square for use as a public square, was to have the square embellished with taste and beauty and to enhance the value of his adjacent lots and that Peter G. Stuyvesant dedicated Stuyvesant Square for use as an ornamental public square. Both these findings have been unanimously affirmed by the Appellate Division and there is evidence to support both.

The evidence showed that in September, 1836, the city took possession of the lands as dedicated, and that in January, 1838, the Mayor approved resolutions of the Common Council directing the Street Commissioner to advertise for estimates for regu ating and inclosing Stuyvesant Square in conformity with the conditions of acceptance, and appropriated $56,000 for that purpose. Nothing further was done by the city, and in March, 1839, Peter G. Stuyvesant brought an action at law against the city for breach of the covenants in the deed, alleging in the complaint that he was the owner of certain lots fronting on Stuyvesant Square and of other lots on the streets adjacent, which he held for sale and leasing, and that his yearly damage caused by the failure of he city to regulate, inclose, plan and improve Stuyvesant Square in the manner agreed upon, was in excess of $49,000, and he asked judgment for $150,000 damages for the three years’ breach. The city entered a general denial, pleaded the resolution of 1838 and performance thereunder with reasonable diligence. The action was

After the recovery of this judgment Peter Stuyvesant frequently urged the city to perform the covenants contained in the deed of dedication. The city did not comply. In April, 1841, the Board of Assistant Aldermen adopted a resolution that a wooden railing be put around the square. In December, 1841, Stuyvesant filed a complaint in Chancery, asking for specific performance of the covenants in the deed. The city filed a general demurrer. The cause was referred to the assistant vice-chancellor who overruled the demurrer and found that Stuyvesant was entitled to specific performance of all the covenants contained in the deed. The city appealed to the Chancellor, who in January, 1845, handed down his opinion holding that the recovery of damages for breach of the covenants to fence, and improve in a particular manner bars a bill for specific performance of these covenants; but that the covenant to maintain the premises as a public square was a continuing covenant and a recovery for breach of that covenant did not bar a suit for specific performance.

In April, 1845, an order was entered by the Chancellor affirming the decree of the assistant vice-chancellor who had overruled the demurrer. The demurrer was to the whole bill and hence the Chancellor affirmed the assistant vice-chancellor because the Chancellor found the bill good as to that part of the bill which held that the covenant to maintain the park as a public square was still valid.

The decree further referred the matter to a master in chancery to compute the damages sustained by Stuyvesant since the commencement of the suit at law down to the time of the decree in equity by reason of the breach of the covenant. The Chancellor having stated in his opinion that the complainant was not entitled to all the relief specifically prayed in the bill of complaint, Stuyvesant, in October, 1845, took an appeal to the Court for the Correction of Errors, which is now the Court of Appeals. This appeal was from that part of the decree which denied Stuyvesatit specific performance of the covenants to “ regulate the grounds,” to erect an iron railing of a certain type and plant and improve Stuyvesant Square in the same manner as Washington Square in September, 1836. The city did not appeal.

In January, 1846, the owners of property around Stuyvesant Square presented a memorial to the Common

The Commissioner of Parks now proposes to remove the lawns in the southerly half of each portion of the square, put concrete where such lawns are, and erect shuffleboard courts, parallel bars, playhouses, ping pang tables, swings, horizontal ladders, wading pools, showers and other gymnastic and playground apparatus. This constitutes a direct invitation to attract thousands of children to play boisterously beneath the windows of these hospitals. It is stated that the amount adapted to these playgrounds will be one-twelfth of each of the parks. It is contended, however, by the hospitals that as each playground is to be in the center of the southerly half of each part, and as the space outside the fence will be merely a border around the playground, a substantial part of the southerly half of each square will be used as a playground and in effect the whole southerly half of each square will be practically devoted to such purpose.

The terms of the grant, coupled with the findings of the trial court, unanimously affirmed by the Appellate Division, show that it was a condition of the grant and the intention of the grantor that these squares should be maintained as ornamental or park-like squares. The appellants do not seriously controvert these terms of these findings, but seek to dispose of these covenants and conditions by reason of the findings of the Chancellor that the suit at law by Stuyvesant upon the covenant

It is to be noted that the previous litigation arose only upon a general demurrer to the whole bill of complaint in equity and the decision was given as a matter of law upon the plea in the answer of the city based upon the records of the court showing that Stuyvesant had theretofore brought a suit at law for damages based upon a breach of the conditions in the deed of dedication respecting the maimer in which Stuyvesant Square should be inclosed and improved and in that suit had recovered damages. The Chancellor thereupon held that the covenants concerning the manner in which the square should be inclosed and improved were merged in the judgment at law and the only covenant thereafter existing was the covenant for use of the square as a public square freed from all other conditions. While holding the above,. however, as the ground for his decision, the chancellólas already noted affirmed the decree appealed from which overruled the demurrer and sent the case back for trial. This because the demurrer was to the whole bill and the Chancellor held that part good relating to the covenant for a public square.

When the case went back to trial the city defaulted and hence a decree was entered in accordance with the allegations of the complaint which decreed all the conditions originally existing.

From the above certain important conclusions follow: First, this court is not bound by what took place in that

There is really not much dispute, and cannot be, that Stuyvesant dedicated this square upon a covenant and condition as to the manner of its use, namely, as an ornamental public square for the following reasons:

First, he specifically provided in the deed that it should be planted and improved similar to Washington Square and we have the above finding that Washington Square was then an ornamental public square. Second, the Chancellor in his decision inferentially admits the above covenant and condition and seeks to do away with it by reason of the doctrine of merger as above stated. Third, the foregoing is the position of the city upon this appeal. Fourth, the decree of the Chancellor as entered is certainly entitled to more weight than his opinion and that restored the covenants as they originally existed.

Furthermore whether a merger took place depends upon whether the condition and covenant to regulate the grounds and keep them as Washington Square was then kept, was intended to be a continuing condition and covenant or not. The trial court has by its findings held that this was the intention of the grantor. Even if the trial court should be bound by the decision of the Chancellor rather than the formal decree, still this court is not bound and the deed of dedication on this subject is at best ambiguous. A deed of dedication which is ambiguous must be construed in favor of the grantor and those who take under him. (Bradley v. Crane, 201

The decree in Chancery moreover was a binding adjudication that the city must maintain Stuyvesant Square as an ornamental square. How are we able to say that the Chancellor after hearing Hamilton Fish of counsel for Stuyvesant before entering the decree did not change his mind from the time he wrote the opinion. Certainly the Chancellor entered the decree at a later time and after hearing counsel for Stuyvesant. In any event the decree as entered supersedes the earlier opinion (Union Nat. Bank v. Kupper, 63 N. Y. 617 ; 2 Freeman on the Law of Judgments [5th ed.], § 772), and this is not changed because, perhaps out of abundant caution, Stuyvesant took an appeal to the Court of Errors and Appeals.

The judgment should be affirmed, with costs.

Crane, Ch. J., Hubbs, Loughran and Eippey, JJ., concur; Lehman and O’Brien, JJ., taking no part.

Judgment affirmed.