Lewis v. Gollner — 37 N.Y. St. Rep. 613

Majority

p. 613

Lester A. Lewis, App’lt, v. Ervin G. Gollner and Ada F. M. Gollner, Resp’ts.

(City Court of Brooklyn, General Term,

Filed April 27, 1891.)

Headnote

Contract—Not to build, when personal only.

One G. having contracted for the purchase of lands on which to erect flats, plaintiff and other adjoining owners, in order to prevent such erection, purchased his contract at an advance and in consideration of such advance G. orally agreed not to erect any flats in their immediate neighborhood. Held, that this was a personal agreement between such owners and G. and did not impose any covenant or equity upon any lands which he should thereafter buy which could he enforced against a subsequent grantee from him, even though such grantee had notice of the agreement.

Appeal from judgment dismissing complaint

Rufus T. Griggs, for app’lt; Taber & Case, for resp’ts.

The learned judge at special term found all the facts in this case in favor of the plaintiff, but held that such facts did not justify a judgment in his favor. The plaintiff owns and resides in a house on the northerly side of President street in this city, between Seventh and Eighth avenues. The defendant, Ervin G. Gollner, on February 19, 1890, contracted in writing to purchase a plot of ground on the southerly side of Union street, 100 feet front and rear and ninety feet in depth on each side, which plot is directly in the rear of the nropertv of plaintiff, and on which Mr. Gollner intended to erect flats. The plaintiff and

p. 614

three adjoining owners of residences on President street, in order to prevent the construction of flats, purchased from Gollner his contract and paid him therefor an advance of $6,300, though the property was worth only the contract price of $18,000. Gollner agreed, in writing, to transfer the contract on March 12, and on March 25 the matter was closed up. The plaintiff claims, and the finding on conflicting testimony is in his favor, that prior to and on March 12, Gollner, in consideration of the payment of the $6,300 and of the execution of the agreement to buy him out, agreed with plaintiff, orally, that he would not construct or erect any flats in plaintiff’s immediate neighborhood, or trouble him any more. About March 23, Gollner began to negotiate for the purchase of a plot of land on the northerly side of Union street and diagonally across the street from the plot he had sold, and on April 1, purchased the same, and subsequently commenced the erection of five flats on said premises. On June 28, he transferred the property for a valuable consideration to his wife, who has continued the erection of the buildings. Mrs. Gollner took with full notice of the claim of plaintiff. The plaintiff brought this action to obtain an injunction to prevent the erection of the flats.

On the facts, as found below, a strong case is made out against the defendant, Gollner. He bought property for $18,000, which was its full value, and threatened to erect flats thereon, whereupon the neighbors who owned fine residences, and who thought their homes would be injured, paid him $6,300 simply to control the property. ■ As soon as he has closed his bargain, he buys a plot of the same size for $20,000, on the side of the street opposite to the lots which he had sold, and commences to build flats. He negotiates with the immediate neighbors of the new purchase, asking a large advance on his purchase price, but is unable to agree with them, and continues the erection of the buildings. If there was any authority which was directly or indirectly in point, in favor of the plaintiff, we would have no hesitation on the facts in rendering a decision in his favor, and against the defendants.

We have examined all the authorities cited, but it will suffice to refer to two only. In Tulk v. Moxhay, 11 Beav., 571; 2 Phillips, 774 , A. being seized of houses and a garden on Leicester Square, conveyed the garden to B. and B. covenanted for himself and assigns not to build in the garden. Held, that a purchaser from B, with notice of the covenant, was bound by it in equity, although the covenant did not run with the land. This is the leading case in England, and has been repeatedly followed in that country. The second authority to which we shall refer ps Hodge v. Sloan, 107 N. Y., 244 ; 11 N. Y. State Rep., 770. In that case the facts were briefly as follows : R was the owner of lands containing building sand, and the sale of the sand was his business. S. purchased a portion of the land and covenanted in the deed not to sell sand from the parcel. S. subsequently conveyed to C. by warrantee deed, and without covenants on the part of C., who however had notice of the covenant in the deed of R to S. Held, that an action could be maintained by R against C. to restrain the sale of sand by him. In each of the above cases the

p. 615

agreement related to a specific piece of land, and was to be found in a deed which would appear in the chain of title. The agreement was a covenant as to the use of the land which was made on the sale, and was restrictive. The parties purchasing took with notice of the agreement, and an action would lie against them for a specific performance, on the same principle that a party who purchases from one who has contracted to sell real property with notice of the contract can be compelled to carry out such contract, as in Duffy v. O’Donovan, 46 N. Y., 223 . The question in equity is not whether the covenant runs with the land, but whether the party purchasing the land shall be allowed to use it in violation of the contract entered into by his grantor, and when the party purchased with full notice of the covenant. Hodge v. Sloan, supra.

The agreement made by Gfollner related to no specific piece of land, for he owned no land in the neighborhood when he made' it. He agreed that he would not in the future buy any land in the neighborhood for the purpose of erecting flats thereon. This, in our opinion, was a personal agreement between the plaintiff and Gfollner, and did not impose any covenant or equity upon any lands which he should buy which could be enforced against any subsequent grantee from him, even though the party who purchased had notice of the agreement. Courts should not spell out a restrictive covenant as to real property unless the agreement is clear and for a defined purpose. It may be said that the distinction that Gfollner did not own the lots on the north side of Union street when he made the agreement is finely drawn. The answer is that if he had owned the lots when he made the agreement it might be well claimed that he contracted as to the particular lots which he owned. His agreement related to his future a'cts, and not to the restrictive use of land which he should purchase.

Judgment should be affirmed, with costs to the respondent, Ada F. M. Gollner.

Van Wvck, J., concurs.