Grenell v. Stillwell — 37 N.Y. St. Rep. 929

Majority

p. 929

Increase M. Grenell, App’lt, v. Sarah A. Stillwell, Resp’t.

(Supreme Court, General Term, First Department,

Filed April 17, 1891.)

Headnote

Injunction—Breach of covenant as to realty.

Plaintiff applied for an injunction to restrain the erection of a building by defendant on her premises consisting of four stories, with bath rooms and water closets on each floor, on the ground that it was a type of a tenement house and a violation of an agreement that only private houses should be erected on the lots of the parties thereto. Defendant, in opposition to the motion, showed by the affidavits of herself, the architect and' i others that the building was intended for a private residence and would i be occupied by herself and her family as such. Held, that an injunction, was properly denied.

p. 930

Appeal from an order denying a motion for an injunction.

Geo. W. Carr, for app’lt; Blair & Keeler, for resp’t.

The plaintiff, as the owner of real estate on the north side of Ninety-first street, applied for an injunction to restrain the erection of a building by the defendant on the south side of Ninety-second street. The preceding owners of these and other parcels of land in the vicinity entered into and recorded an agreement, by which it was agreed “ that whenever the said lots owned by them, or any of them, .or any of the said lots, should be improved, that the first buildings to be erected on the said lots, or any of them, should be for private residences only.” 'The defendant proposed to erect on her lot a building twenty-eight feet in front and rear, and seventy-eight feet and two inches in depth, of four stories in height, with a basement and cellar. The building was to be built with brick and stone. The plan of the building is stated to exhibit in the second and third stories, “ eight rooms each, with a long hall running through the centre of said floors, and with two bath rooms and water closets on each of said floors. And,

“ The fourth or top story of said proposed building is arranged similarly to said second and third stories, except that there is but one bath room and one water closet on the floor, but there are four wash basins and two additional rooms, two main front and rear rooms, being divided each into three, making ten rooms on said floor."

It has then been added that,

The first story is laid out similarly in the rear part thereof to the second and third stories, but in the front part there are two large rooms divided by sliding doors, with a hall on the east side of the building leading to an open reception room in the centre of the floor opposite the stairs, making seven rooms in addition to one bath room and one water closet The basement story is planned for seven rooms, besides a bath room and water closet.

The building is affirmed to be “ a type of a tenement house,” and charged to be in violation of the obligations created by the agreement. This has been attested by the plaintiff and two other persons making affidavits in her behalf. But it has been positively denied by the defendant, who swears that the building is designed for a private residence, and that it is intended, and will be, permanently used and occupied by the defendant and her family as and for a private residence, and for no other purpose. This is in like manner confirmed by her mother, with whom the defendant resides, by her brother and by the architect, and more than a dozen other persons whose affidavits are in the case.

If it be assumed that the complaint presented a case for the injunction, it has been fully answered by the defendant’s answer and these affidavits. They have left no ground on which an injunction coyld be either issued or sustained.

The order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.