Banks v. American Tract Society — 4 Sarat. Ch. Sent. 438

Majority

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Banks and others v. The American Tract Society.

Headnote

The decision of a vice-chancellor, dissolving an injunction, is conclusive between the same parties, in that branch of the court, on any application for its revival on the same state of facts ; or on a new state of facts, except upon leave first had to apply anew.

But the decision does not conclude such vice-chancellor, nor any judge, from granting a perpetual injunction on the same stale of facts, at the final hearing of the cause on the merits.

An order of the court made upon a motion, is not res adjudicata, in the proper .sense of that term.

It is a general principle, both at law and in equity, that when a party, by his declaration, or his conduct, has induced another to act in a particular manner, which he would not otherwise have done ; such party will not afterwards be permitted to set up a claim inconsistent with such declaration or conduct, if such claim will work an injury to the other party, or to those claiming under him.

A stipulation or engagement, made by a party in the face of the court, touching the subject matter of the litigation; is a contract with the court as well as the adverse party, which the court is bound to enforce for the protection of the' latter.

A proffer of the defendants to the complainants, in open court, that if the latter would remove a rear addition to their building, they might have light and air, over a vacant space in the rear of an adjoining lot belonging to the former, accepted by the complainants, and performed on their part; is a valid contract which will be enforced in equity.

On a motion to dissolve an injunction, restraining the defendants from further erecting a building, which would deprive the complainants adjoining tenement: of light and air, claimed by them by prescription and by contract; the defendants counsel showed to the court, by reference to their answer and a diagram annexed, and also stated, tbat they had left an open space in their rear, for the complainants accommodation as well as their own, from which the complainants tenement might derive light and air, if they would take down a four story privy forming a part of their tenement, and butting against such open space. The injunction having been dissolved, the complainants, on the faith of such statement and representation, took down their privy, and inserted windows in the wall of their tenement, in the place of the doors that led to the privy. The defendants objected, and commenced building a wall across the open space over against such new windows, intended to be carried to the height of such tenement, and which would nearly or quite prevent the access of light and air to the same. The court, on motion, restrained the erection of such wall by the defendants.

Whether the uninterrupted enjoyment of light and air over adjoining land, by a

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tenement, for twenty years or any longer period; will confer a right to the continuance of such enjoyment? Quere.

Nov. 30, Dec. 8, 1846 ;

January 8, 1847.

This cause came before the court, on a motion to restore an injunction, formerly issued, and dissolved on the coming in of the answer; or for other or further relief. To render the application and its result intelligible, it is necessary to state the Whole case somewhat at large.

The bill was filed August 3,1846, by David Banks, Anthony Gould, the executors of William Gould, deceased, and William Gould (the younger,) against The. American Tract Society, a religious institution incorporated in 1841, by an act of the legislature of the state of New York, having its place of business in the city of New York. The case made by the bill, so far as it affected the motion, was as follows :

In February, 1834, Messrs. D. Banks, William Gould, since deceased, and Anthony Gould, were, and for many years had been, law booksellers and stationers, doing business in the city of New York, under the name of Gould, Banks & Co., and in the city of Albany under the name of Wm.dk A. Gould dk Co, In that month, they bought in fee the lot of ground No. 144 Nassau street, in the city of New York, for the purpose of carrying on their business, together with the printing offices and binding rooms connected therewith. The lot was twenty-one feet one inch in front on Nassau street, twenty-three feet one inch wide in the rear, forty-six feet five inches deep on its north side, and forty-seven feet seven inches on its south side ; and the price paid for it was $8250. (Their subsequent erections thereon, cost about $7000 more.) On th'e north it bounded on 1 a lot of ground, then and still belonging to the defendants, (at that time a voluntary association,) which was seventy-eight feet in front on the east side of Nassau street, extending north to Spruce street, the same breadth in the rear, and forty-seven feet deep on Spruce street, and also on the southerly side adjoining the lot of Gould, Banks & Co.

Previous to 1834, the defendants association erected on their lot, a large and substantial brick building, covering its entire

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front and extending back nearly to its east line ; which they used for their offices and business till the spring of 1846.

In March, 1835, there was a master’s sale under a decree of the court of chancery, of the lot of ground on Spruce street, (25 feet front and nearly 100 feet deep,) next east of and adjoining the rear of the respective lots of the defendants and of Gould, Banks & Co. Previous to the master’s sale, Mr. Banks in behalf of his firm, negotiated in several interviews with the directors, authorized agents, and apparent managers of the defendants association, for a joint purchase of the Spruce street lot, so that Gould, Banks & Co., might obtain such part of it as was in their rear, and southerly of their most northerly window, and thus afford their building sufficient light and air, in which by its small depth it was deficient; and it was finally agreed between the parties, prior to the sale, that the defendants association should become the purchaser of the Spruce street lot at the master’s sale, and should sell and convey to Gould, Banks & Co., so much of it as formed the boundary of the rear of their lot, and as might be necessary to give their building sufficient light and air, at a price in proportion to the entire cost of the Spruce street lot. Accordingly at the master’s sale, the latter was bid off by Richard T. Haines, one of the managers or directors, (who was appointed and authorized to purchase it,) in behalf of the defendants association, for $11,600, which was its full value, and it was conveyed to him by the master. He soon after conveyed it to trustees for the defendants, who paid the price of the lot to the master. After their incorporation, the lot was conveyed to the defendants ; who were also vested in 1841 and 1842, with the entire title to their original lot, on the corner of Nassau and Spruce streets., Mr. Haines when he bought, knew of the arrangement with G., B. & Co.

On the 13th of March, 1835, before the master’s deed was executed, the defendants board of managers, in consequence of G., B. & Co. calling on them to execute the agreement befere set forth ; passed a resolution, and furnished a copy to Gould, Banks & Co., to the effect, that 16 feet of the rear, part of the Spruce street lot be offered to Mr. Banks for $2000, and that he be requested to decide on it by the 20th of March. On that

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day, G, B. & Co., in writing, proposed to refer it to two impartial men and an umpire, to fix the price or value of the land to be taken by G., B. & Co. No definite answer was made to this proposal; and on the 27th of March, 1835, G., B. & Co. in writing, proposed,' in fulfilment of the agreement made before the sale, to buy one-sixth of the Spruce street lot, being sixteen feet and eight inches in depth across the rear thereof, and pay the defendants $2000, on the delivery of the deed. On the same day, the defendant’s agent answered, that after consideration as to the kind of building to be put on it, they had concluded to suspend further negotiations for the present, as to the rear of the Spruce street lot.

From that time, until June, 1846, Gould, Banks & Co. were pot apprised of the defendants readiness to renew the subject, or to complete the original agreement; nor had they, until 1846, any information, or suspicion that the defendants thought of refusing, or attempting to refuse the performance of such agreement and understanding ; nor had the defendants done any act upon the rear of the Spruce street lot, impairing the advantages which G., B. & Co. had always derived from the rear of that lot. After the master’s deed, the defendants did build a five story brick building upon the front of that lot, but not extending back so as to affect the rights G., B. <fc Co. had secured by the agreement as to the rear of the lot.

The complainants insisted, that as G., B. & Co. were induced not to bid off the lot at the master’s sale, by the understanding for its joint purchase ; the defendants are bound specifically to perform the same, and have ever held the rear of the lot in trust for G., B. & Co.

William Gould died on the 20th of January, 1846, leaving a will appointing executors, by which he devised his share of the lot 144 Nassau street, to William Gould, (the younger,) and the residue of his real estate to his executors, so as to vest them with the legal title. Messrs. Banks, A. Gould and W. Gould, the complainants, still conduct the business of, law booksellers and stationers, at the same places in New York and Albany; and own the lot 144 Nassau street, with the right to enforce the agreement with the defendants.

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The complainants, by the bill, tendered and offered to pay the price of the rear of the Spruce street lot, according to the terms and intent of the agreement.

On the 3d of June, 1846, the complainants received from the defendants, a letter notifying the former, that it was their intention, without delay, to pull down their building on Nassau-street? to excavate for a cellar and basement, at least fourteen feet six inches below the surface, the ground in the rear of the complainants building, and to build thereon a new building. This was the first act of the defendants, in derogation of the original agreement.

The complainants, in April, 1846, and never before, heard from rumor, that such a proceeding was in contemplation, and addressed a letter to the defendants, renewing their proposal to pay the $2000, and pointing out the vast injury it would occasion the complainants, to have the light shut out from their book-store, printing office, and bindery, as it would be by the contemplated building.

The defendants answered, on the 1st of May, that they could not, consistently with their own accommodation, divest themselves of any part of the Spruce street lot.

The defendants proceeded, and were, when the bill was filed, erecting a building which was to be five stories high above the basement, covering the whole rear of the Spruce street lot, and which was then up to the height of the second story beams.

The bill also set up a claim to the light and air, over the rear of the Spruce street lot, for the benefit of the complainants building, by prescription, which it is unnecessary to set forth, as it was not decided upon. The complainants building is of brick, six stories high above the basement, and extending back to within four feet of the rear line of their lot, 144 Nassau street, and as it covers the whole breadth of the lot, it can have no side lights, because of the walls of the adjoining buildings. The defendants wall, built to the rear line of the Spruce street lot, within four feet of the complainants building, when carried to the height of the latter, as is intended, will impair and almost destroy the access of light through the rear windows of the

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complainants, and will injure their business, and greatly reduce the value of their property.

The bill prayed a specific performance of the agreement relating to the purchase of the Spruce street lot; that the defendants might be restrained from disturbing or molesting the complainants in the enjoyment of the light and air over that lot, through their windows in the rear of 144 Nassau street; for an injunction against the further erection by the defendants, of the building commenced on the rear of the Spruce street lot, adjoining the rear of 144 Nassau street; and for general relief.

On filing the bill, and the usual security, Assistant Vice-Chancellor Sandford, permitted an injunction to issue, restraining the defendants from proceeding with the erection of their building, on so much of the Spruce street lot, as was directly in the rear of 144 Nassau street.

The answer of the defendants, filed August 21st, 1846, was verified by William A. Hallock, their corresponding secretary, who had been such from their first organization, and who stated, he was better acquainted with the affairs set forth in the bill than any other officer of the society.

The answer admitted the statements of the bill, except as hereafter mentioned. It denied that previous to the master’s sale of the Spruce street lot, or at any other time, either Gould, Banks & Co., or Mr. Banks, had any interview with the defendants association or their directors, managers, or authorized agents, in relation to the purchase of that lot; or that the latter or any or either of them, expressed a desire to purchase the portion of the lot in their rear; or that Banks was desirous of purchasing the portion in the rear of G., B. & Co., or the part thereof southerly of their north window. It denied that at any time, before or after the sale, it was agreed between the defendants association and G., B. & Co., that the former should become the purchasers of the Spruce street lot, at the master’s sale, and thereupon should sell and convey to G„ B. & Co, or either of them, such portion of the rear of such lot, as formed the boundary of the rear of the latter’s lot, as might be necessary to give their building light and air, at a proportionate price, for the

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portion so to be sold, to the whole cost of the Spruce street lot, or upon any other terms whatever. On the contrary, the American Tract Society has not, and never had, either before or since its incorporation, any authorized agent or agents for the purchase or sale of real estate, or any important pecuniary transactions, except its executive committee or its finance committee. That, by the fifth article of the constitution of the society, it is provided, that the directors shall annually elect a publishing, a distributing, and a finance committee, (each consisting of not less than three, nor more than six members ;) the members of which three committees, shall constitute an executive committee to conduct the business of the society. That these committees are only answerable for acts passed by a quorum, at a meeting regularly convened, and recorded in their book of minutes, and never have had any authority to act, except in that particular mode. That the financial business of the society has always been chiefly transacted by its finance committee, but in matters of moment, that committee frequently takes the advice of the executive committee. That neither Gould, Banks & Co., nor any one for them, or either of them, attended any meeting of either of those committees of the society; nor ever addressed any communications to either of those committees, previous to the master’s sale, except as after mentioned. And that neither of the committees ever authorized any one to treat with Gould, Banks & Co., or with either of them, in respect of the purchasing or selling the Spruce street lot, or any part of it; nor did either of the committees in any way whatever, ever give any sanction to any negotiation of any sort, with them or either of them, respecting such purchase or sale.

At the master’s sale, the lot was purchased for the society, by Mr. Haines, then one of the directors. It sold for less than its value, the executive committee having authorized Mr. H. to bid $15,000 for it, if necessary, to secure it for the society. The answer denied that Haines had any knowledge or notice of the arrangement and agreement set forth in the bill; for that no arrangement or agreement of any kind was ever made between the society and Gould, Banks & Co., in relation to the Spruce street lot. It denied that shortly after Mr. H.’s purchase, or at

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any other time, G., B. &. Co., or either of them called on the society, its directors, managers and agents, or either of them, to execute the agreement pretended in the bill, or to come to an arrangement with them respecting the quantity of the rear part of the lot which should be conveyed to them under such agreement, or the proportionate price to be paid therefor ; except as after mentioned.

The finance committee, on the 13th of March, 1835, passed the resolution set forth in the bill; but the answer denied that this was in part performance of any agreement or understanding between the society and G., B. & Co., or either of them. That the truth, in relation to the transaction, is as follows:

On hearing that the Spruce street lot was to be sold at auction, the officers of the society thought it advisable for the society to become its owner for their own use. Before any action on the subject, Messrs. Banks and W. Gould called on Mr. Hal-lock, the corresponding secretary and general agent of the society, and suggested, that as the Spruce street lot lay in the rear of the lots of both parties, they should not bid against each other, but make an arrangement, whereby whichever of the two parties bought it, that party should sell a portion of the lot to the other. Mr. Hallock replied, that the committee of the society alone had power to act on the subject; that he thought it probable the committee might be willing to make some such arrangement, if the subject were properly brought before them. Nothing was said, then or at any other time, as to which of the parties should buy the lot, or at what price, or definitely how much ground one should sell to the other, or on what terms. That Gould & Banks bound themselves to nothing, and Hallock had no power or authority whatever to act in the premises. He informed the committee of their suggestion, but the committee took no action on it. After this, he called on G., B. & Go., in company with Mr. Green, one of the committee, and after a little conversation with Banks, retired with the distinct understanding, that he had no definite proposition to make, on which the committee could act. That no agreement was made between them, nor any definite proposition made by Banks, or any of his partners. The committee were willing to consider can

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didly any proposition from G. &, B. whereby they should have assumed the responsibility of paying for a definite part of the Spruce street lot, if purchased by the society; but as they proposed nothing, and assumed no obligation, the committee judged the society must protect itself by purchasing the whole lot. A resolution, that Mr. Haines purchase it, was adopted by the executive committee, on the 3d of March, 1835. On the 13th of March, the finance committee passed the resolution set forth in the bill, offering sixteen feet of the lot to G., B. & Co., and another resolution, appointing a committee to borrow money to pay for the lot, and erect buildings thereon. Mr. Banks replied in writing to the former, in the name of his firm, offering to arbitrate as to the price, reiterating the agreement as to the purchase, as being made with Mr. Hallock, and understood in the conversation with him and Mr. Green. On the 23d of March, the executive committee renewed the offer of sixteen feet to G, B. & Co., for $2000, requesting their answer the next day, as the purchase money of the lot was to be paid on the 25th March.

No answer was made by G., B. & Co. to this last proposition. On the 27th of March, 1845, they addressed a letter to Mr. Hal-lock, offering to pay $2000 for one sixth of the lot, in the rear; on which the finance committee resolved that further negotiations be suspended until the plan of a building should be matured, and delivered a copy of the resolution to G., B. & Co. No further overture or proposition was received from them by the society, and the matter of the sale was entirely dropped. The society erected a two story building in the rear, on the Spruce street lot, to within nineteen feet of the rear line, and back of that erected and maintained till 1846, a large privy and several coal bins.

The answer denied that the society or any of its officers or agents, ever communicated to G., B. & Co., the intention of the society, in case it purchased the lot, to convey to them any portion of it; or that G., B. & Co. were prevented from purchasing, by any understanding or agreement whatever.

On the 1st of May, 1846, in reference to the renewed proposition of the complainants, the finance committee asked the opinion of their architect and machinist, who certified that the

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society could not spare any of the rear of the Spruce street lot, consistently with their own accommodation ; and the committee concurred, and so informed the complainants.

The answer admitted the proceedings to rebuild, which were undertaken in order to have the society’s printing done on its own premises, and that the building was to extend on the rear of the Spruce street lot. The answer proceeded thus : “but these defendants deny they are erecting such building upon the entire rear of said lot, and on the contrary they allege that they leave a yard on the extreme rear of said lot, six feet in depth on the easterly side and four feet in depth on the westerly side, and of the whole width of the said lot, being nearly or quite twice as large as the yard reserved by the complainants from their own lot; the situation of which will more correctly appear from the diagram marked A. hereto annexed, to which these defendants crave leave to refer as forming apart of this their answer.”

(The wood cut below, is a copy of the diagram A. annexed to the answer.)

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SPRUCE STREET. y to to > o * n q 02 g o s 2 sg CO “ O' Kj m r o *3 46-4 70-Í4 Gould, Banks & Co. 144 Nassau St. 47-98 p K¡.ti5 9-f m ►d m O"1 O d g: if ►3 •-i P o CQ o o CD* r* *<j B* Tract. Soc. Yard. 22-7 99-10

The answer proceded to traverse the right to light and air by prescription, as claimed in the bill; and alleged that Gould, Banks & Co. after they purchased their lot, in 1834, built a store oh it, extending farther to the rear, with different windows, and three stories higher, than the old building there situated when they bought. That their present building extends on the

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southerly side, to the line of the Spruce street lot, and on the easterly side it extends eight feet ten inches on that line, being a privy four stories high ; and the defendants are erecting their building in rear up to the line of the lot adjoining the premises of the complainants, as shown on the diagram before mentioned.

The answer denied that the defendants intended building, would destroy the lights at that time received in the complainants building, though it will materially affect the same. It denied any application or request of the complainants to the society or any of its officers or agents, to execute the agreement or understanding set up in the bill, otherwise than as before stated. The answer further set up the statute of frauds and the statute of limitations, in bar of the relief sought by the bill. It also alleged that the society had sustained great expense by the injunction. That the building is to contain a steam engine and all the necessary machinery and apparatus, which are under contract to be made expressly to fit the part of the building on the rear of the Spruce street lot, and to be connected with the power presses in the main building; at an expense of $20,000.

On filing the answer, the defendants moved to dissolve the injunction. The motion was argued by counsel, before Vice-Chancellor McCoun, who on the fourth Tuesday of August, 1846, made an order that the injunction be dissolved.

The motion now reported, was brought on before Vice-Chancellor Sandford, on the pleadings in the cause, and on affidavits read in behalf of the respective parties. It was made in connection with a motion for leave to file a supplemental bill, setting up the matters stated in the complainants affidavits, or such of them as were appropriate. The complainants on the 8th of October, 1846, obtained an order to show cause, with a temporary injunction against the further erection of the extension wall hereafter mentioned; on which order, after various delays for the convenience of the parties, the motion came on to be heard.

The complainants affidavits and papers annexed, were as follows:

1. The counsel who opposed the motion to dissolve the in

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junction, deposed that he took notes in writing at the time, of the points made by the respective counsel for the defendants, which appeared to call for observation on the part of the deponent. That Mr. Holden, in opening the motion for the defendants, directly called the attention of the court to the diagram annexed to their answer, and to the facts exhibited thereby; that the tract society had left a vacant space on the rear of the Spruce street lot adjoining a portion of the rear of the lot of the complainants, and stated to the court in express terms, that the complainants might derive the use of light and air, at all limes in common with the defendants, from that portion of the defendants lot, and the latter in erecting their rear building, had left that part of their lot vacant expressly with a view to accommodate the complainants by affording them the free use of light and air therefrom. The latter statement of the society’s counsel, struck the deponent at the time as so extraordinary, that he made a note of it in his minutes of the argument in order to call his attention to it in answering in the words following, 61 left that part for his accommodation ;’’ which words were used by Mr. Holden in that behalf, in connection with the statements before referred to. That deponent, in opposing the motion, referred to those declarations of Mr. Holden, and to expose what deponent then believed to be the insincerity of the society in whose behalf they purported to be made by Mr. H.; called the attention of the court to the fact that the part of the Spruce street lot so left vacant, abutted against the wall of the building of the complainants, and therefore they could not derive light and air therefrom; and Mr. Holden interrupted deponent by remarking that this wall was# the wall of a privy attached to the complainants building, and they might take down the privy if they wished the use of light and air from the society^ lot. That deponent understood and believed the declarations so made,' to be the authorized declarations of the Tract Society, and in that belief informed Mr. Banks thereof, and advised him to act thereupon and make the change in his building so suggested, and to avail himself of the light and air so tendered and offered and alleged to have been intended for the complainants. That the proceedings in court were public and audible1,- and Mr. Hal-

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lock, and others believed to be officers and managers of the society, were present attending to the proceedings.

2. The solicitor for the complainants, William G. Banks, deposed that he was present during the argument of the motion to dissolve the injunction, and stated what took place, in the same manner that it was set forth in the affidavit of the complainants counsel.

3. Edgar Ketchum, counsellor at law, deposed that he was present in court at the argument of the motion to dissolve the injunction. That Mr. Holden, one of the defendants counsel, in his opening argument, called the attention of the court to a plan of the ground, showing how much of the lot was to be covered by the Tract Society’s building, and stated in substance that the defendants had left that part of their lot vacant, and the complainants could derive light and air for the rear of their building from the rear of the lot of the society not built upon by them. That Mr. Sandford, the counsel for the complainants answered, that the portion of the lot left vacant was against the rear wall of the complainants building, and was the wall of the privies attached to their premises ; to which Mr. Holden replied in substance, that that was the complainants own choice, and if they chose to have privies there instead of lights, it was not the defendants fault.

4. The complainant, David Banks, deposed that after the injunction was dissolved, the defendants had raised and inclosed their building on the rear of the Spruce street lot to its intended height of five stories, and it obstructed the light and air formerly received into the complainants building, to the full extent which had been anticipated by them, as stated in the bill. That the defendants building extended along the rear of the complainants lot, beyond all the windows they had in their rear at the time of its erection, and to and against the wall of the privy attached to the complainants building, (situated in the southeasterly corner of their lot, and two of its sides extending to the southerly and easterly lines of their lot;) so as effectually to exclude from their rear windows all light and air from or over the defendants lot. But the defendants building did not extend to the southerly line of their Spruce street lot. They constructed

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windows in the rear and southerly side of such building, to admit light and air therein from the rear of that lot, and left on its southerly end an open space, about four feet in depth on the westerly side adjoining the complainants lot, about six feet in depth on the easterly side, and extending across the entire rear of the lot in question.

(The affidavit then detailed, on information, what took place in court on the motion to dissolve the injunction.)

That at the time Gould, Banks & Co., erected their building on their lot 144 Nassau street, the large building known as the Tract Society House, was standing on the adjoining lots of the defendants on Nassau street; and G., B. & Co., in laying their foundation walls, fully protected the Tract House from injury, at great additional expense to themselves, and to their loss in their own building of six feet in width of the cellar and basement. That the defendants, on taking down the Tract House in May and June last, dug the foundation for their new building, under and below the foundation of the complainants building, so that the latter became settled, cracked and greatly injured, and the complainants incurred an expense of $515, in shoring up and supporting their building. That after the decision of the motion to dissolve the injunction, the deponent proposed to the counsel for the Tract Society, that to settle all controversies between the parties, the Society should pay the expense last mentioned, and the expense of removing the privy to the northeast corner of the complainants lot, which would give them the right to light and air in common with the defendants, over the little space not built upon in the rear of their lot; and the counsel for the Society said, he would recommend or advise such settlement to the defendants.

That the complainants, finding themselves seriously inconvenienced in the enjoyment of their property, by the defendants new building, and acting upon the public declaration, (as before stated,) of the cession by them to the complainants of the use of the light and air, over the rear of the portion of their Spruce street lot not occupied by their building ; took down the privy in the rear of the complainants lot, attached to their building) and commenced inserting in the rear wall of their building, op

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posite where the privy had stood, windows of suitable size to admit light and air in the rear of their store, printing office, and book bindery. The windows so inserted were securely introduced, with iron lintels, iron sills, and iron frames, and all inclosed with fire proof iron shutters, of the best description. After the complainants had commenced the insertion of the windows, deponent on the call of the defendants counsel, had an interview with him, in which he intimated, that if such windows should be inserted, the defendants would erect a wall across the four feet remaining on the westerly side of their Spruce street lot, along the rear of the complainants lot, and thus shut them out from the light they might expect to derive therefrom.

The deponent further stated, that the wall along the southerly side of the complainants lot, is already huilt six stories high, entirely up to the line of the defendants lot, and the threatened wall of the latter would totally exclude the complainants from any light and air, except that to be derived from the rear of their own lot. The deponent feeling highly indignant at the suggestion of an act, which he believed to be a wanton and malignant attempt to further injure and destroy the complainants property, earnestly remonstrated against the erection intimated. Shortly afterwards, he received a letter from the defendants counsel, dated September 18,1846, notifying the complainants, that under existing circumstances, the Society felt compelled by a just regard for their own security, to extend the wall of their building in the complainants rear, to the southern boundary of their Spruce street lot; for the reason as alleged, that the insertion of such windows by the complainants, would increase the hazard of the Society from fire.

That the defendants building, alleged to be thus exposed from those fire proof windows, is erected for the avowed purpose of putting up and using therein, a steam engine and machinery ; while the complainants have no steam power, or other employment upon their premises, requiring the use of fire or steam as an agent, and they have within their store, on an average, an amount of books, stock, and work in progress, not less in value than about $150,000, and as he believes, greatly larger than the amount of property at risk in the defendants buildings. That

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the pretence that such windows would increase the hazards of the defendants from fire, and the cost of insurance, was utterly unfounded; and to prove the same to them, deponent obtained and served on their counsel and agents, a certificate of competent persons to that effect. That notwithstanding, the defendr ants are proceeding to erect such wall, and have already carried jt up to the second story of the complainants building.

The certificate annexed, was in the following words :

(‘ This is to certify, that the undersigned have examined the windows, recently put in the rear wall of the store of Banks, Gould Co., No. 144 Nassau street, and say, that the windows are well and securely introduced, with iron lintels, iron sills, and iron frames, the whole enclosed with iron shutters, and made fire proof, more so than windows in general are, called fire proof. That we consider the same fire proof, the hazard by fire not increased, and the charge for insurance not.advanced by reason thereof.

(‘New York, Sept. 24, 1846.”

This certificate was signed by four agents and secretaries of fire insurance companies, one master carpenter, and one mason, Three other masons, one master carpenter, two builders, and two secretaries of fire insurance companies, in addition to the former, signed it before the motion was made.

5. Samuel Blqoi? deposed, that on or about the first of Octor her, he served the defendants counsel, and three of their manar gers or committee men, each with a copy , of the certificate, with a letter from Banks, Gould & Co., attached to each copy, of which a copy is below. At that time, the foundation of the extension wall to th..e rear, had just been commenced, it being several feet below the surface. The letter was as follows:

“As the Tract Society are about building a wall across the remaining three or four feet in the rear of our store, which will exclude all the light from us; and as the cause assigned for such a course adopted by the Tract Committee, was the hazard by fire, and the increase of the premium for insurance by the Fire Insurance Companys; we lake the liberty, before you com

p. 455

menee the wall, to serve you with a certificate of several of the agents and secretaries of Insurance Companys, and builders, that your fears are groundless, and that the hazard by fire, and the expense of insurance, are not increased nor advanced, by the introduction of our windows in our rear wall.

“ Banes,- Gould & Co.-

“New York, October 1, 1846.”

6. A subsequent affidavit of David Banks, stating the additional signatures to the foregoing certificate, and setting forth another certificate, in the words following, viz i

“ We, the undersigned, have been or are now officers or firemen, attached to the fire department in the city of New York.-

“ That we have examined the iron windows introduced in the rear wall of Banks, Gould &, Co.’s store, l44 Nassau Street# and pronounce them fire proof ;• and more safe than any windows we have examined. That the Tract House and other buildings in the neighborhood are not more exposed to danger# and the hazard from fire not increased thereby.

“That there is a space or area of about five feet between the rear walls of said store and Tract buildings. That windows of this kind are highly necessary for the admission of light and air into said store, which are obstruced by the Tract House building, and a dead brick wall extending beyond the same, shutting out the light and air from a Vacant space, and apparently erected for that express purpose, and not necessary in any way for the security, completion or convenience of said Tract building.”

This certificate was signed by the chief engineer and three late chief engineers of the fire department, by two late engineers, and by twelve foremen and late foremen of fire engine and hose companies.

On the part of the defendants, the following affidavits and papers were read in opposition to the motion on showing cause.

1. S. V. S. Wilder# deposed that for seventeen years prior to 1842, he was president of the American Tract Society. That he was present at the argument of the motion to dissolve the injunction, and recollects that one of the defendants’' counsel# for

p. 456

the purpose of correcting an error in the bill, laid before the vice-chancellor a diagram, showing that the society’s building did not extend to the southerly line of the complainants premises within the distance of four feet 5 but the deponent heard no intimation of any cession of light and air through that opening of four feet, nor of any pledge that such space should be continued open; and having given careful attention to all that occurred in the arguing of the case, he is confident that the assertion that any cession of such light and air, or any pledge respecting it, was then made, is utterly at variance with truth and fact.

2. William A. Hallock, deposed, that he is the secretary of the defendants, and was present at the argument of the motion to dissolve the injunction, and no other officer or agent of the society was present on that occasion. It was not on that argument, stated to the court by the counsel for the defendants, in the presence or hearing of the deponent; that the complainants could at all times enjoy light and air over the remaining portion of the Spruce street lot, (which the society had reserved for light and air for their own building,) and that no injunction was necessary to secure to the complainants a reasonable proportion of light and air from that lot. That the counsel for the society had no authority whatever to make any such statement, if any such were ever made. The deponent recollects that a diagram was shown to the court, by the counsel for the society, showing that the society had not built upon their extreme southerly line, as alleged in the bill, and showing the opening the society had left in the rear of their new building.

That at the time of such argument, no pledge or assurance of any kind was given in regard to any opening, or to the use or privilege of any light or air; and the counsel for the society had no authority whatever to make or give any pledge on the subject. If any thing were said by him on the subject, it was merely incidental, when exhibiting the diagram, showing that the society had left an opening in the rear. No arrangement or compromise was then and there made, proposed or suggested, on the subject, on the part of either party.

That the vice-chancellor decided the motion to dissolve, not on the ground of any condition in favor of the complainants, or

p. 457

any expectation held out of any enjoyment of any right whatever in or over any part of the premises in question by them; but he decided the motion entirely on the merits, as they appeared in the bill and answer, and on the ground that upon those papers, the complainants had no right to any conveyance of any part of the premises, and no right to any easement or privilege in or over the same; and no leave was given or asked to renew the motion, or to make any other.

That when Mr. Banks and his co-partners erected their building, 144 Nassau street, although intending to do so without injuring the Tract Society’s house, yet it was greatly injured thereby; the walls being badly cracked, and one or more sills broken, and it was otherwise injured. No complaint, however, was made, or redress sought.

That there will be a very large amount of property introduced into the society’s new building by them and their tenants; and they have felt it to be their duty to' use evpry possible precaution to guard the premises from loss by fire. That since the injunction "was dissolved, the society’s officers have perceived that Mr. Banks has taken out the whole southerly rear of his building, being an opening about seven feet wide from the roof to the ground, making one continuous window, six stories in height, excepting the iron sills and lintels. That this great opening, very considerably increases the risk from fire of the society’s premises, as is the opinion and belief of deponent, and of many judicious and reflecting men who have examined the premises. That in erecting the wall now complained of by Mr. Banks, the society’s committee were not actuated by wanton and malignant motives, as charged in his affidavit; but, as deponent believes, by an honest regard for the interests of the society, and a conscientious discharge of their duty. That they protested against his intended alterations on the L8th of September, which was as soon as they heard of them, and on the 30th, through their counsel, addressed a letter to Banks, Gould & Co., to the follow, ing effect, viz.:

That the committee had ever wished to consult their neighbors’ convenience, as far as they could consistently with the most advantageous use of the property intrusted to them, they

p. 458

having no personal pecuniary interest in it.” (The letter then reviewed the purchase of the Spruce street lot, and the offer to Gould, Banks & Co., as stated in the answer.) “ That at some inconvenience, and gratuitously, they left open the space in the rear, which would accommodate the complainants, expecting, as did their architect, that the latter would set the rear wall of their building back,” (towards the front of their lot,) “ leaving a space of ten to twelve feet from their rear windows to the rear windows of the society, which with proper shutters, would be a sufficient security against fire. This was done in the spirit of good neighborhood, hoping it would be reciprocated. Instead of which the complainants, after waiting till the society’s building was ready for a second tier of beams, and their machinery fitted to its size, obtained an injunction, and delayed their work for a long time; next an action at law for damages, and, last of all, a tier of windows from the top( to the bottom of the complainants south-east rear wall. Notwi istanding all this, the society set down naught in malice ,• they still desired the complainants to avail themselves of the light and air which might be enjoyed by them, if they saw fit to alter their rear, and construct their windows so as to make the society safe. That the society could not but believe the alteration then proposed, would expose them to greater damage from fire. The society had been at great expense in preparing their roofs, &c., to resist fire in all ordinary ways, and they thought the complainants own interest would be consulted by carrying out the plan which had been before suggested, which would cost them but a few hundred dollars more than the mere insertion of the windows, and which would, as architects advised, be indispensable to secure light to them, whenever buildings should be put up to the line of the Spruce street lot on the lot next south. If the committee owned the complainants store, they would at once shorten it; and the cost of so doing would be a very small item, compared with extra insurance which the society must pay, and the hazard they must incur, if the complainants inserted the windows as they proposed. The committee in addressing them, did not claim to control or advise them in the matter, but to inform them that the duty of the committee was, if they saw fit to insert such windows in their

p. 459

then rear wall, to extend the society’s wall to the southern boundary, to save insurance and risk in all future time. Their counsel renewed his suggestion, that if the complainants saw fit to make a proposition to the committee to set back their wall four to six feet, and put on their windows secure shutters, &c., and withdraw all litigation, the society would probably desist from erecting the intended wall; at any rate, he would so advise the society.’ ’

That Banks, Gould & Co., declined to accede to the suggestions of this letter; and were endeavoring to influence the public mind by exparte and erroneous statements. That many of the buildings near the defendants building are very high, and occupied by steam furnaces, by printing, binding, and other combustible materials; some of them being such that some of the safest insurance companies will not insure them at all; the upper stories of the complainants binding, are occupied for printing and binding; and deponent believes, and it is evident, he thinks, to the common sense of every one who will examine the premises, that the risk to the Society’s building is increased by the large opening for the complainants windows.

That deponent is advised by intelligent insurers, officers of the fire department, and experienced builders, that the erection of the Society’s extension wall, with a dead wall on the line of the lot next south, which it is expected will soon be built, will form an entire protection, not only to the Society’s building and those adjoining, but to the whole neighborhood, and he believes the opinions, <fcc., in the certificate annexed to his affidavit, to be true.

Thai the wall of the main building adjoining the complainants on the south, does not extend east to the rear of their lot, but stops five feet from it; and the building of the Society’s extension wall, therefore, would not totally exclude the light and air from the complainants building. Its whole six stories would be lighted over the space of five feet.

(The residue of the affidavit, was a reiteration, somewhat more in detail, of the denials in the answer, of any agreement, understanding, or intimation, as to the purchase of the Spruce street lot, and the other statements concerning the same.)

The order dissolving the injunction annexed, was in the

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usual form, giving no reason for the decision, and was silent as to leave to apply for a renewal of the injunction.

3. The certificate appended was as follows :

“ The undersigned hereby certify, that they have examined the premises adjacent to the wall of four feet which the Tract Society have commenced erecting on the westerly line of the rear wing of their building, at the corner of Nassau and Spruce streets; and it is the judgment of the undersigned, that in case the adjacent building of Messrs. Banks, Gould & Co., or Messrs. Morse, should be on fire, said wall, if completed to the height of said building, would add to the protection of the Society’s premises, and it is further the judgment of the undersigned, that in case Messrs. Morse should extend a wall without openings along the southerly line of Banks, Gould & Co. and of the Tract Society, as it is said is proposed to be done, the completion of said wall of four feet connecting with such wall of said Messrs. Morse, would be a very essential protection to the Society’s building, should the building of Messrs. Banks, Gould & Co. or Messrs. Morse, be on fire; and an equal protection to the buildings of Messrs. Banks, Gould & Co., and Messrs. Morse, should the Society’s building be on fire, and that the erection of the two said walls would be an important protection to the neighborhood.”

This certificate was signed by eight presidents, secretaries and agents of fire insurance companies ; by the chief engineer, four ex-engineers, and four assistant engineers of the fire department, the president and three trustees of the Fire Department Fund, and two architects and builders.

4. An affidavit made by John Stearns, Moses Allen and Richard T. Haines, supporting the answer in respect of the original purchase of the Spruce street lot, and the complainants allegations respecting the same; so far as they knew, they being the only surviving members of the finance committee of the Society at that period.

5. An affidavit of John Knox, James C. Bliss, and William Forrest, who, with the three last named deponents, were the only surviving members of the executive committee of the Society in 1835; corroborating the answer, to the extent of their knowledge in the premises.

p. 461

6. An affidavit of the two secretaries, and the assistant secretary of the Society in like corroboration.

The diagram below, represents the premises as they were when the motion, was made in December, 1846. *

NASSAU STREET, SPRUCE STREET. 70' o > V & V A 4> & 46-4 Banks, Gould & Co. 144 Nassau St. 47-7 98 k¡ -4-9 & V Q Tract. Soc. Yard. 22*7 01-66

At the place marked P, the complainants four story privy was situated, which they took down after the injunction was

p. 462

dissolved. Y, including the space P, exhibits their yard, as left after the privy was taken down.

w is the place where the iron framed windows were inserted in their rear wall.

a is the southwest corner of the Society’s building, from which to b, on the southwest corner of their Spruce street lot, they commenced building the- five story wall, or partition fence, complained of on this motion.

W. G. Banks and E. Sandford, for the complainants,

H. Holden and M. S. Bidwell, for the defendants.

The bill when filed, prayed for an injunction to restrain the defendants from further proceeding in the erection of their building, which had then been commenced, on that part of lot number four Spruce Street, which was in the rear of the complainants lot No. 144 Nassau street. An injunction was issued, in substance according to the prayer of the hill. The building which the defendants were erecting, extended over about nineteen feet of that part of the Spruce street lot lying in the rear of 144 Nassau street, and left a space at the rear of the Spruce street lot about four feet in depth on the west and about six feet deep on the east side of that lot, which was not occupied by any building. This space, butted against the complainants lot, and extended across the Spruce street lot, about twenty-three feet.

The late vice-chancellor, on the coming in of the answer, dissolved the injunction. His decision is conclusive between the parties in this branch of the court, on any application on the same state of facts, (or on a new state of facts, except upon leave first had to apply anew,) for a revival of the injunction which he dissolved. But it did not conclude him, nor does it conclude any judge, from holding at the final hearing of the cause, on the same facts, that the complainants are entitled to the relief which they seek by their bill, by a perpetual injunction, or otherwise.

An order of the court made upon a motion, is not res adjudi■*

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cata, in any other sense than that which I have stated. It does not conclude the court as to points of law involved in its decision, whether arising in the same case or in another.

In this instance, although the complainants in terms ask to restore the injunction : the papers on which they move, in connection with the notice, show that such is not the object intended, The motion is to restrain an erection, which was not commenced or contemplated when the injunction was issued or when it was dissolved, and which forms no part of the edifice against the erection of which the injunction proceeded.

The matter now presented, therefore, was not before the late vice-chancellor. He decided on the bill and answer, that the defendants ought not to be restrained from building the edifice which they had commenced. He did not decide that they should be permitted to build up the dead brick wall now in question, from the southwest corner of their building on the Spruce street lot, to the rear of that lot, so as to shut out what little of air and light that edifice had left to the complainants.

So far as legal principles, or conclusions as to matters of fact, were involved in the decision of my predecessor, on the motion to dissolve the injunction ; they will be treated with the high respect and consideration to which the decisions of a judge of his ability and experience are justly entitled. And except upon clear and imperative convictions that he erred, I shall feel impelled to be governed by his conclusions. But to say that I am to follow them implicitly, whether right or wrong, is a position to which I cannot assent.

Examining the question before me with these views, the first point presented, is the agreement or understanding between the parties, as alleged in the bill, at the time the Spruce street lot was purchased, and the cotemporary proceedings, on which the complainants claim a right to the portion of it situated in their rear. Without analysing the conflicting statements on this subject, it suffices to say that I do not perceive any good reason for differing from the late vice-chancellor in his view that the answer meets and denies the equity of the bill.

p. 464

■ The next question is the more difficult one of the complainants right to light and air from the Spruee street lot, claimed from its uninterrupted enjoyment for a sufficient length of time to ripen into a prescriptive title.

It is insisted hy the defendants, that according to the established law in this state, no such right can be acquired by lapse of time. That such enjoyment of light and air, is not adverse or hostile to any right of the owner of the adjoining land, and cannot become the foundation of a presumption of right to continue their use as against such owner.

In Parker v. Foote, 19 Wend. 309 , this doctrine was held by Judges Bronson and Nelson, (Judge Cowen not concurring ;) and is probably to be deemed the decision of the court, although it was made only for the purposes of a new trial which was previously directed on another point.

Chief Justice Savage, a few years before, in Mahan v. Brown, 13 Wend. 263 , esteemed the contrary to be too well settled to require any discussion ; but he did not decide the point.

Concurring with his opinion, is that of Chancellor Pennington, in New Jersey, as emphatically declared in Robeson v. Pittinger, 1 Green’s Ch. R. 57, 64. And in the court of appeals of South Carolina, it has been decided by a united court, that by the common law, the receiving of light and air through one’s windows over the soil of another, is an easement, which by twenty years enjoyment, becomes a right which cannot be disturbed ; and that there was nothing in the institutions or the condition of this country, inconsistent with the application of the common law doctrine on that subject. I apprehend that the doctrine relative to ancient lights now prevailing in England, is not a modern one; and that it is a great error to attribute its introduction to the ruling of Chief Justice Wilmot in 1761.

The dissolution of the injunction in this cause by my predecessor, may be deemed a decision against the complainants on this point. It is a question of vast importance ; one which I have no desire to encounter; and with that decision, as well as the opinion of the supreme court in Parker v. Foote, in favor of the defendants ; I am persuaded it is not my duty to examine the question upon this interlocutory application. Whether it be an

p. 465

open question, I express no opinion; still less do I mean to be understood as intimating a bias upon it either one way or the other.

I now come to the circumstances which have occurred, since the filing of the bill, on which, independent of the grounds therein stated, the complainants seek to restrain the erection of the new brick wall, or partition fence.

In answer to a charge in the bill, that the defendants were building on the entire rear of their Spruce street lot, they denied the statement, and set forth that they were leaving a yard at the rear, the whole width of that lot, six feet deep on the east side, and four feet on the west, the situation of which would be seen by reference to a diagram annexed to the answer. This diagram exhibits the outline of the respective lots owned by both parties ; the yard in question, bounding on the west by the complainants line and its south line corresponding with the south line of their store ; the complainants yard, fourteen feet and one inch wide, by an average of four feet deep, shut in by the wall of the dedefendants building; and the outline of the complainants store, represented on the diagram as coming to the defendant’s west line, for a distance of eight feet and ten inches, at the south west corner of the Spruce street lot, and thus bounded four feet by the yard they were leaving in the rear of the lot.

In point of fact, that part of the complainants building, 8 feet 10 inches wide, and projecting from the rear of their store, as exhibited on the diagram, was a four story brick privy, connecting with their store in each story; so that the store derived no light from the rear of that projection.

The affidavits show some difference in the recollection of those who were present, as to what occurred on the motion to dissolve the injunction. The principal facts are stated positively by three persons, and are corroborated by a minute made by one of the counsel at the time, as well as by the reference to the diagram. The affidavits on the other side, show merely that the two gentlemen who were present, do not remember, what the others swear they do remember; so that there is really no

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contradiction. The reference to the diagram, and the portion of the answer accompanying it, is recollected by all.

There was no conceivable object in thus referring to those documents, unless to show to the court, that the complainants would still have an open space in their rear, over the defendants lot.

The fact and the argument, had no bearing whatever on the two great points on which the injunction was to stand or fall, the alleged agreement, and the right to the use of light and air over the Spruce street lot; but they were addressed to the conscience and the sympathy of the court, in answer to an apparent case of injury and hardship.

I have no difficulty, therefore, in my conclusion as to what took place on the argument of the motion to dissolve the injunction, and it is this :

The counsel for the defendants referred to the answer and the diagram, and pointed out to the court, that the defendants, as well for the complainants accommodation as their own, had left the vacant space or yard at the rear of the Spruce street lot; from which the complainants might, at all times, derive the use of light and air for their store. And in reply to the suggestion of the complainants counsel, that the dead wall of their store, bounded upon such open space or yard, the defendants counsel stated to the court, that the dead wall was merely the wall of the complainants privy, which they might take down if they wished to have the use of the light and air from the defendants lot; and if they suffered the privies to remain, instead of having the light, it was not the defendant’s fault. All this took place in the face of the court, and in the presence of the defendants corresponding secretary, who verified their answer, and appears to have been their principal executive officer or manager, for at least eleven years past. It was the unquestioned act of their counsel, acquiesced in by their manager, and corrobo-, rated by their answer in the cause.

The complainants, in full confidence that these statements were not only true and authoritative, but that they were proffered in entire fairness and good faith; at once set about admitting the light to the rear of their store, which the five story

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wall of the defendants edifice was daily and hourly excluding, as it advanced in height. They took down and removed their privy from the south east corner of their store, making a straight line of their east wall, and turning into a yard, the space beyond that line which, on the diagram annexed to the answer, is represented as covereredby their building. And in the space in their rear wall, which the privy had covered, they proceeded to insert large windows, one in each story, prepared with iron sills and lintels, as well as iron frames, and secured without, by fire proof iron shutters.

While the insertion of these windows was progressing, they were notified, on behalf of the defendants, that if they persisted in putting in the same, the latter would erect a brick wall from the south west angle of their building on the Spruce street lot, running south on their west line to the south line of their lot, and carry it up to the height of their main building. The complainants continued the work of inserting the windows, and the defendants commenced building the brick wall which is now in question.

As to the morality of this transaction on the part of the defendants, to which much of the argument was addressed; it is not my province to determine, or even to comment upon, its character. I am to deal with the rights of the parties according to law, and shall endeavor to discharge that duty without being swayed either to the one side or the other, by* the vehement arguments of the respective counsel in relation to the conduct of their opponents.

it is a general principle, both at law and in equity, that when a party, by his declaration or his conduct, has induced another tp act in 9. particular manner, which he would not otherwise have done ; such party will not afterwards be permitted to set up a claim inconsistent with such declaration or conduct, if such claim will work an injury to the other party, or to those claiming under him. (See Welland Canal Company v. Hathaway, 8 Wend. 483 , per Nelson, J.; Dezell v. Odell, 3 Hill, 221 , per Bronson, J.)

If Judge Bronson be correct in his opinion, in Parker v. Foote, before cited, that the use of light and air through win

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dows in a house overlooking the adjacent land of another, is not an easement, or a privilege enjoyed adversely to the rights of the .owner of such land; there would be no difficulty in applying the principle just stated, to this case. For in that view, the defendant’s declaration and conduct, upon which the complainants acted, would not confer an interest or right in the lands of the former, and would not be open to any objection, because it was not in writing. As I have forborne to pass upon the very important question involved in that opinion of the learned judge, respecting the acquisition of a right to light and air over a neigffi bor’s land, by lapse of time ; I will, for the present, waive this apparent corollary from his conclusion in that case.

As a mere license, the complainants cannot be sustained in their claim to stay the erection of the wall. In Wolfe v. Frost, September 1, 1846, which was before me, as assistant vice-chancellor^[1] I held, that a license is an authority to do a particular act, or series of acts, upon another’s land, without possessing any estate therein ; whereas, a claim for an easement, is a permanent interest in another’s land. A license, when executed, will prevent the owner of the land from maintaining case or trespass for the acts done under it; but it is revocable at pleasure, and will not be a defence to any act done after it is revoked. And although the party licensed, may have expended money on his own land, solely on the faith of the license, that circumstance does not prevent the party granting it, from revoking it at pleasure, without ipaking any compensation for such expenditure.

The result of an earnest, and I may well add, anxious consideration of this case, is that I ought not to interfere on either of the grounds heretofore discussed; but that I am bound to grant a preliminary injunction, upon the proceedings which took place jn this court, when the injunction against the rear of the main building of the defendants was dissolved.

The defendants declarations on that occasion, were intended to have weight with the court, on the pending motion. They Were a solemn statement, equivalent to a promise or engage

(a) (a) Ante, page 73.

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ment, made to the court and the adverse party, that the latter might if they would, avail themselves of the light and air, over the open space left in the rear of the defendants Spruce street lot; and that such space had been left for the mutual accommodation of both parties in respect of light and air.

I have no reason to doubt that the statement was made in entire good faith. It will not answer for the defendants to assert now, that thoir counsel were not authorized to make such a statement or engagement, after permitting it to go before the court, not merely undisputed and unquestioned by their executive officer who was present, but actually sustained and warranted, to all appearance, by the defendants answer in the cause, and the diagram annexed.

They have been induced to deviate from the undertaking then made, and their ground for so doing, as stated by them, is their apprehension of danger to their own building and its contents, from any fire which may occur in the complainants store ; the large windows which the latter are opening, greatly increasing the defendants risk from that source, as they are advised. Whether this apprehension be well or ill founded, it is not for me to say ; nor do I deem it material.

In my view, the statements and representations made to the court and to the complainants, on the argument of the former motion, are to be regarded as a contract with the court, as well as the latter ; and that it stands on the same footing as any stipulation or engagement made by a party, in facie curiae, touching the subject matter of the litigation, which the court is bound to enforce. It should be carried into effect, precisely as the court would enforce a promise of a party that he would not commit waste on mortgaged premises, made pending a motion for an im junction or receiver.

Another illustration of the action of the court in a parallel case, is found in its enforcing parol engagements made by solicv itors and counsel, relative to the conduct of a suit or its proceedings, when made in open court or before a master; although a standing rule of the court requires that all such agreements shall be in writing, in order to be valid.

That it is right and equitable to enforce the engagement in

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question, there can be no doubt. The complainants have acted upon it, in full confidence of its being well intended, as well as valid. They have incurred heavy expenditures, and made essential alterations in their building, solely relying upon the proffered benefit. And there should be some more potent reason for suffering the defendants to retract their engagement under such circumstances, than the one presented in the opposing affidavits.

On the ground of the undertaking made to and with the court, it is clearly my duty to restrain the erection of this wall, in direct contravention of that undertaking.

As a contract with the complainants, it appears to me capable of being enforced. In effect, the defendants agreed that if the complainants would remove their four story privy, and insert windows in the rear of their store instead, they might have the use of light and air through such windows, over the open space left by the defendants in the rear of their Spruce street lot.

Now whether this would benefit the defendants, by withdrawing the privy, and enlarging the side space adjacent to their southwest windows in their rear, or was not likely to produce any advantage to them, is not important. The labor, expense and temporary inconvenience of the removal of the privy, and inserting the windows, furnished a sufficient consideration on the part of the complainants. As a parol agreement, it may be said to be void by the statute of frauds ; but having been executed by the complainants, and having relation to real estate, this court would enforce it in the exercise of its ordinary jurisdiction, especially when made under such circumstances.

These conclusions, concurring with the sound and just principle heretofore mentioned1 as applicable to acts induced by the declarations and conduct of another, induce me to grant the complainants motion, without entering at all into the critical consideration of the important points which were before the court, on the motion to dissolve the injunction.

Motion granted, and an injunction to be issued accordingly»

Cases cited

Parker & Edgarton v. Foote 19 Wend. 309 N.Y. Sup. Ct. p. 464