Submission of controversy upon an agreed statement of facts, under section 1279 of the Code of Civil Procedure, between Anna M. Doyle and the John E. Olson Realty Company. Proceeding dismissed.
[116 N.Y.S. 835]
Thomas W. Butts (Morgan J. O'Brien, of counsel, and Walter P. Vining, on the
brief), for plaintiff.
Ralph Stout, for defendant.
Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, McLAUGHLIN, and CLARKE, JJ.
Benjamin Stevens, Amelia A. Willett, and Elizabeth A. Brice owned and possessed in fee the block of land bounded by Fifth and Sixth avenues and Fifty-Second and Fifty-Third streets in the city of New York. By deed dated and acknowledged June 9, 1871, and duly recorded, they conveyed to William Sloane by full covenant and warranty deed premises 100 feet by 100.4 feet at the southeast corner of Sixth avenue and Fifty-Third street, subject to restrictions as follows:
" And the said party of the second part for himself, his heirs, executors, administrators and assigns, doth hereby covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that whenever he or they shall or may build on or improve said piece or parcel of land or any part thereof he or they shall and will erect and build or cause to be erected and built good and substantial first-class buildings of at least four stories in height above basement constructed of brick or stone and the fronts of which shall be of best quality brown stone or Dorchester stone or Philadelphia brick with stone trimmings and the said buildings to front on Sixth avenue and shall not nor will at any time erect or build or cause or suffer to be erected or built upon he said premises any house of any other description or character to front on Sixth avenue.
" And the said party of the second part further covenants and agrees to and with the said parties of the first part that, in case he shall erect and build a building in the rear of said lots to front on Fifty-Third street, the said building shall be a first-class dwelling house not less than four stories in height above the basement, and the front of which shall be of best quality [116 N.Y.S. 836] brown stone or Dorchester stone or Philadelphia brick with stone trimmings and not less than sixteen feet six inches in width in front. And that he will erect or build the said dwelling house or cause the same to be erected and built in such manner that the exterior face of the front wall thereof shall be on a line parallel with and distant eight feet from the southerly side or line of Fifty-Third street aforesaid, and that he will not erect or build or permit to be erected or built any erection, structure or building on that part of the premises hereby conveyed which is bounded northerly in front by the southerly side of Fifty-Third street aforesaid and in the rear southerly by a line parallel to such southerly line of Fifty-Third street and distant eight feet therefrom except only the necessary steps for entrances and platforms, pedestals and iron or stone railings connected therewith, and an iron or stone fence inclosing the said part of the said premises and the foundations and copings of such fence or railings, but that he shall and will at all times preserve and keep the last-mentioned part of the said premises hereby conveyed an open courtyard unobstructed except as aforesaid. And the said party of the second part for himself, his heirs, executors, administrators and assigns, doth hereby further covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that the said party of the second part, his heirs and assigns, or any of them, shall not nor will at any time hereafter erect, build, make, establish or carry on or cause or permit to be erected, built, made, established or carried on in any manner on any part of the premises hereby conveyed any livery or private stable or any stable of any kind, coalyard, slaughterhouse, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or iron factory, or any manufactory of glass, gunpowder, starch, glue, varnish, vitriol, ink or turpentine, or any cooper's or carpenter's shop, or any establishment for tanning, dressing, preparing or keeping of skins, hides or leather, or any brewery, distillery, sugar or other factory or lager beer establishment, theater, museum, opera house, circus, menagerie, or public show, or spectacle or drinking saloon or barroom, dance house or place of amusement of any kind, engine house, schoolhouse, or any other erection known as or used or employed for purposes known as nuisances in the law, or erect or build or commence to erect or build any building or edifice for any business with intent to use the same or any part thereof for any of the purposes aforesaid.
" And said party of the second part for himself, his heirs, executors, administrators and assigns, doth hereby further covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that in case he, the said party of the second part, his heirs and assigns, or any of them, shall build and erect or cause to be built and erected a dwelling house on the rear of said lot aforesaid to front on Fifty-Third street, that whenever he or they shall convey the same the deed or conveyance thereof shall contain in addition to the above restriction a clause of restriction against a ‘ meat shop, cabinet maker's shop, bakery, tenement, community house, or any kind of manufactory, trade or business whatever,’ and shall contain the following provision: ‘ That the building erected thereon shall be restricted to a private dwelling without a store or stores underneath." '
The said deed further provided:
" The said covenants to be construed and taken as covenants real running with the land."
The remainder of the block on Sixth avenue was conveyed in 1868, three years prior to the conveyance to plaintiff's predecessor in title, by the same grantors from whom the plaintiff derives title, and subject to the same restrictions. William Sloane and wife, by deed dated and acknowledged April 30, 1874, and duly recorded, conveyed to Samuel Simon, Jr., and Abraham Dryfoos, out of the aforesaid parcel of 100 feet by 100.4 feet, two parcels designated on the map included in the submission as A, which had a frontage of 80.4 feet on Sixth avenue and a depth of 74.4 feet on Fifty-Third street, and B, immediately [116 N.Y.S. 837] adjacent thereto on the south, 20 feet front on Sixth avenue, and 74.4 feet in depth; that is to say, the whole Sixth avenue front of the original parcel but only 74.4 feet in depth. By mesne conveyances, subject to the same restrictions set forth in the deed from Stevens and others to Sloane, these two parcels, A and B, came into the possession of the plaintiff herein in 1876.
On June 24, 1908, the plaintiff and the defendant entered into a contract as vendor and vendee of parcel A, being 80.4 feet on Sixth avenue and 74.4 on Fifty-Third street. Said contract contained certain provisions not germane to this controversy, and concluded as follows:
" The property shall be conveyed by full covenant warranty deed (short form) with marketable title in fee simple, free from incumbrance, excepting as herein stated."
Defendant objects to and refuses to take title on the ground that the restrictions hereinbefore recited, contained in the deed of Benjamin Stevens and others to William Sloane, prevent defendant from erecting on the premises in question a good and substantial building in height equal to not less than four stories above the basement and to be constructed of iron, cement, or other fireproof material, the front thereof to face on Sixth avenue, and not to be of brown stone or Dorchester stone or Philadelphia brick with stone trimmings, to be used as a theater, opera house, or place of amusement, with a hotel, barroom, or drinking saloon ...