McDougall v. Schneider

any fence, building or part of building within twenty feet of the building line of Avenues K, L and M, Bast Eighteenth street, East Nineteenth street, East Twenty-First street and East Twenty-Second street, nor any stable within sixty feet of the building line of Avenues K, L and M, East Eighteenth street, East Nineteenth street, East Twenty-First street and East Twenty-Second street. The above covenants as to twenty-foot building line shall not apply to steps, piazzas, bay or oriel windows upon houses erected in accordance with the above restrictions.

“These covenants to run with the land and are to be construed as covenants running with the land until January 1, 1920, when they shall cease and terminate.”

The deeds of the lots fronting on Ocean avenue contained similar covenants, except that the buildings were to cost not less than $3,500 each, and were to be placed at a greater distance back from the line of the avenue than was required as to lots fronting on the other streets. By various mesne conveyances the defendants became the owners of 80 lots situated upon three different blocks upon said map. Each of these conveyances contained a reference to the said covenants and restrictions, and was made subject to the same. Thirty-four houses had been erected upon other portions of the property shown on the map, eight of which were upon two of the blocks in question. Each of these houses has been built in conformity with the requirements of the covenant. No house has been built upon any part of the property shown on the map in violation thereof. The parties to this controversy entered into a contract by which the defendants agreed to sell, and the plaintiff agreed to purchase, the said 80 lots. Prior to the time agreed upon for closing the contract, the defendants procured an instrument to be executed by Dunham and his wife, by which he released the property from the said covenants so far as he was able to do so. At that time he owned no property shown upon the map. The plaintiff objects to completing his contract upon the ground that the covenant was not a personal covenant for the benefit of Dunham, but that it inured to the benefit of all of his grantees, and could not be released without their consent. We think his contention is correct. One class of restrictive covenants are those “which are entered into with the design to carry out a general scheme for the improvement or development of real property. This class embraces all the various plans, generally denominated in the English cases as building schemes, under which an owner of a large plot or tract of land divides it into building lots to be sold to different purchasers for separate occupancy, by deeds which contain uniform covenants restricting the use which the Several grantees may make of their premises.” Korn v. Campbell, 192 N. Y. 490 , 85 N. E. 687 . It is apparent that this covenant belonged to this class: (a) Because of the statement above referred to contained upon the printed copies of the maps. It is true that there is no evidence that any of these printed copies were exhibited to any of the persons who became purchasers of any of the lots shown thereon. There is no evidence to the contrary. But this statement is at least evidence that an intent at that time existed in the mind of Dunham to carry out a general scheme to make this exclusively residential property, (b) This intent was effectuated by an express provision in each of the deeds making the covenant applicable to all of

There should be judgment for the plaintiff upon the submitted controversy for the return of the earnest money and the costs of examining the title, with interest, together with the costs and disbursements of this submission. All concur.