Rockaway Hunting Club v. Oakley — 144 N.Y.S. 1142

Majority

p. 1142

ROCKAWAY HUNTING CLUB v. OAKLEY.

(Supreme Court, Appellate Division, Second Department.

December 31, 1913.)

Headnote

Appeal from Special Term, Nassau County. Action by the Rockaway Hunting Club against Elizabeth L. Oakley. From a judgment for defendant, plaintiff appeals. Reversed and rendered.

Charles K. Carpenter, of New York City (Frederic D. Philips, of New York City, on the brief), for appellant.

William S. Pettit, of Far Rockaway (Charles C. Bunker, of Far Rockaway, on the brief), for respondent.

After the construction of the house upon the defendant’s lot, a stable appurtenant thereto was built in 1898, and was used for a stable during that year. Hinckley, plaintiff’s predecessor in title, knew that the structure was a stable, and that it was devoted to that purpose. In 1899, the stable was converted into a living apartment by change of interior arrangement, although there was no apparent change in the exterior. The change was not made through any reliance upon any act or omission of Hinckley or the plaintiff, nor is the plaintiff estopped to maintain this action by passivity on his part or that of his predecessor. The judgment should be reversed, with costs, and judgment entered enjoining the defendant from using the building for the purposes of a living apartment or dwelling house, or for any purpose violative of the restriction. All concur.