Gubbins v. Peterson

ation and circumstances, the implication arises from the terms of the covenant, as within the contemplation of the parties to the instrument, that the houses erected on any portion of the premises were to front on that avenue. This contention is founded in part upon the fact that Eighth avenue was then a desirable street for first-class dwelling houses; that it was contemplated that the houses to be erected on the premises bordering it on the west would front on the avenue, and consequently it would be more agreeable to have fronts than rears of houses on the opposite side, and render the avenue in that locality more desirable. This may have been within the expectation of the plaintiff when he made his purchase, and he may then have had no'apprehension that any owner of the portion of the land referred to, unconveyed to him, would erect such a building as the covenant permitted fronting elsewhere than upon the avenue. At the time of the conveyance to the plaintiff, in 1890, the residue of the property within the operation of the covenant, and which was afterwards conveyed to the defendant, faced on both the plaza street and Eighth avenue. The plaza was the subject of statutory provisions enacted in the year 1870, whereby the Brooklyn park commissioners were authorized to lay out a street 80 feet wide within the plaza of Prospect Park; and thereby restrictions were placed upon the character and purpose of buildings erected on the land facing the plaza, and the character of materials of which they were to be constructed, and the manner of their construction, were, to some extent, defined. Laws 1870, c. 613. Inasmuch as the land conveyed to the defendant faced upon the plaza, the conveyances to his grantor and to him were by the terms of the deeds made “subject to the covenants and restrictions, as to buildings and against nuisances, contained in former deeds of said premises, and in agreements of record affecting the same, and also to the restrictions imposed and benefits conferred upon said premises by chapter 613 of the Laws of 1870 of the State of New York.” The park plaza is also referred to in the agreement first above mentioned as the eastern boundary of that portion of the premises lying east of Eighth avenue, and which was afterwards conveyed to the defendant. The plaintiff, therefore, was advised, when he took his conveyance from Chapin, that the premises in question faced upon a public place or street other than Eighth avenue, and substantially parallel with it. How, then, can it be seen, in the terms of the covenant, that, in view of the situation as it was at that time, the parties must have intended that buildings to be erected upon that portion of the premises should front only upon the avenue? The question of desirability to be entertained by the owner of it was one for his consideration, and about which the view of people in that relation might differ. At all events, the frontage of a house upon Plaza street, instead of putting the front on the avenue, was not so clearly contrary to all reason and judgment as to necessarily raise the implication that the covenant was intended to permit the latter only. There is no ambiguity in the phraseology of the agreement, presenting any question of doubtful meaning. And it is a well-settled proposition that restrictions upon title taken by grant will not, as against the grantee, be extended beyond those which the instrument creating them, by its terms or by necessary implication, imports. Duryea v. Mayor, etc.,

62 N. Y. 592 ; Blackman v. Striker, 142 N. Y. 555 , 37 N. E. 484 . It is trué that the qualified use of the premises by the defendant was made appurtenant to them by the common grantor of the parties, for the benefit of the plaintiff, in his relation to the property purchased by him. And it may be that he had in view the frontage on Eighth avenue of any house which should be erected on the premises which were afterwards conveyed to the defendant. But his expectation or understanding in that respect, whatever it may have been, cannot enlarge the import of the covenant, as against the defendant, who, so far as relates to its restrictive provisions, must be deemed to have purchased in reference only to its terms, and with a view to the interpretation of which they were fairly susceptible. Rickerson v. Insurance Co., 149 N. Y. 307 , 43 N. E. 856 . Nothing appears in the evidence to characterize the united intent of the parties in making the agreement, other than such as the language employed expresses it. It is not seen that the fact that the premises are described in maps in city departments, and upon the assessment rolls, as upon Eighth avenue, has any essential hearing upon the question arising upon the covenant. They do not qualify the fact that the land is bounded by the two streets. It cannot be assumed that the rear of any dwelling house will be so constructed upon the premises as to render it or its use a nuisance. It certainly may not, nor will the premises thereby necessarily be made so in their relation to the street in the rear of them, and therefore no such question is now here for consideration.

These views lead to the conclusion that the judgment should be reversed, and a new trial granted; costs to abide the final award of costs. All concur.