Clark v. Jammes — 33 N.Y.S. 1020

Majority

p. 1020

CLARK v. JAMMES et al.

(Supreme Court, General Term, First Department.

May 17, 1895.)

Headnote

Covenants—Restraining Use of Land.

A covenant restraining the use of certain lots to dwelling houses or private stables, and providing that the owners shall not “erect or permit upon such lots, or any part of the same, any livery stable, slaughterhouse, smithshop * * *, or any other manufactory of gunpowder, glue, vitriol, ink, or turpentine, or tanning, dressing, or preparing skins, hides, or leather, or any brewery, * * * place for the exhibition of wild animals, or any other erections known as nuisances in the law,” does not forbid the use as a dressmaking establishment of a house erected for a private dwelling.

Appeal from special term, New York county.

Action by Harriet S. A. Clark against Albert F. Jammes and another. From an order, granting an injunction, defendants appeal.

Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

James R. Ely and Roger Foster, for appellants.

T. G-. Shearman, for respondent.

We think that the difficulty in the maintenance of the order appealed from is in the covenant contained in the agreement which forms.the basis of the injunction. It seems to be assumed that this restrictive covenant prevents the occupation of any building which may be erected upon the premises therein described for any use except that of dwelling houses or private stables. In the construction of restrictive- covenants of this kind, it must be borne in mind that they are to be construed most strictly against the covenant; and, unless the thing sought to be enjoined is plainly within the provisions of the covenant, an injunction will not issue. That part of the covenant which applies to* the case at bar is that the owners of the lands therein mentioned shall not or

p. 1021

will not “at any time hereafter erect on the lots or lot owned by them, respectively, any building except brick or stone dwelling houses of at least two stories in height, and except buildings of brick or stone for private stables.” Now, it is conceded that the house erected upon these premises was erected as a private dwelling house, and has all the exterior appearances of such a building. But it is urged in support of the injunction that, under such a restriction as was contained in the covenant in question, it could not be used for a, dressmaking establishment or for any commercial purpose. We cannot find in the terms of the covenant any such restriction. The requirement of the covenant is fulfilled by the character of the building, and any occupation which may leave the building of the general character of a private dwelling house does not seem to violate this restriction. This view is accentuated when we consider the balance of the covenant.' It reads as follows:

“And, further, that neither he nor they shall or will at any time hereafter erect or permit upon such lots, or any part of the same, any livery stable, slaughterhouse, smithshop, forge, furnace, steam engine, brass foundry, nail or other iron factory, or any other manufactory of gunpowder, glue, vitriol, ink, or turpentine, or tanning, dressing, or preparing skins, hides, or leather, or any brewery, distillery, museum, theater, circus, place for the exhibition of wild animals, or any other erections known as nuisances in the law.”

It will be seen that the parties evidently contemplated that the first part of the covenant, to which attention has been called, did not restrict the use to which the premises were to be put. It only designated the character of the building which was to be erected upon the premises; and they thought it necessary, in order to exclude its occupation for purposes which were considered detrimental to the neighborhood, to put in a provision prohibiting the permission upon said lots or any part of the same of such occupation. A consideration of the whole of the restrictive covenant, therefore, seems to lead inevitably to the conclusion that in its construction it is necessary to hold that the occupation of a portion of a house erected for a dwelling house for any purpose not within the prohibition contained in the last clause of the covenant does not come within its restrictions. We think, therefore, that the court erred in issuing the injunction, and that the motion should have been denied.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.