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DAVIS E. BUCKELS v. PAT PALLONE ET AL. (07/02/68)

COURT OF APPEALS OF NEW YORK 1968.NY.42501 <http://www.versuslaw.com>; 239 N.E.2d 747; 22 N.Y.2d 866 decided: July 2, 1968. DAVIS E. BUCKELS, INDIVIDUALLY AND AS PRESIDENT OF TREELAND CIRCLE HOMEOWNERS ASSOCIATION, APPELLANT,v.PAT PALLONE ET AL., RESPONDENTS, ET AL., DEFENDANTS Buckels v. Pallone, 28 A.D.2d 636, affirmed. G. Robert McAllister for appellant. Lee Alexander for respondents. Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Keating. Judge Jasen dissents and votes to reverse in the opinion in which Judge Breitel concurs.


Buckels v. Pallone, 28 A.D.2d 636, affirmed.

Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Keating. Judge Jasen dissents and votes to reverse in the opinion in which Judge Breitel concurs.

 Order affirmed, with costs, on the opinion at the Appellate Division.

Disposition

Order affirmed, etc.

Jasen, J. (dissenting). Defendants are the owners of lot No. 177 in Terrytown Tract, Section B, located west of the City of Syracuse in the County of Onondaga. Lot No. 177, approximately 20,000 square feet in area, is a pie-shaped parcel in a portion of the tract bounded by Treeland Circle. Terrytown Tract, as laid out in a map filed in the Onondaga County Clerk's office, is composed of 170 lots varying in size from about 8,000 square feet to 20,000 square feet with frontage running from 80 feet to 250 feet.

On August 14, 1959 Terryland, Inc., owner of the tract, filed an instrument recorded in the Onondaga County Clerk's office entitled "Protective Restrictions." The preamble of the instrument referred to "the premises known as Terrytown Tract, Section B according to a map made by Sargent-Webster-Crenshaw & Folley, and filed in the Onondaga County Clerk's office, April 22, 1959".

Paragraph 1 of the provisions read as follows:

1. No lot shall be used except for residential purposes.

No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling, not to exceed two and half stories in height and a private garage for not more than two cars.

Paragraph 2 of the restrictions contained a minimum cost requirement for any dwelling, a minimum ground floor area, minimum front set back distances, and minimum sidelot distances.

Paragraph 3 in pertinent part provided:

3. No dwelling shall be erected or placed on any lot having a width of less than 50 feet at the minimum building set back line nor shall any dwelling be erected or placed on any lot having an area of less than 6,000 square feet. In 1964 the defendants commenced construction of two homes on lot No. 177. Shortly thereafter, plaintiffs brought proceedings for a preliminary restraining order, and thereafter a temporary injunction. Following a trial, a judgment granting a permanent injunction against defendants was entered. The trial court found a common scheme and uniform plan had been proven, making the protective restrictions enforcible. The trial court further found that the construction of more than one dwelling on a lot as indicated on the tract map constituted a violation of the restrictions.

The Appellate Division reversed unanimously on the law and the facts and dismissed the complaint. The Appellate Division found no restriction prohibiting the resubdivision of a lot and noted that the proposed structures complied in all respects with the recorded restrictions. Concluding that there was no violation or proposed violation on the part of defendants, the Appellate Division did not reach any of the other questions raised by defendants.

It appears that the Appellate Division adopted defendants' argument that the wording of paragraph 1 of the restrictions was ambiguous and applied the general rule that restrictive covenants are to be construed strictly against those seeking their enforcement and in favor of the free use of property (Reformed P. D. Church v. Madison Ave. Bldg. Co., 214 N. Y. 268; Cook v. Murlin, 202 App. Div. 552, affd. 236 N. Y. 611). In order to reach this conclusion, it would appear that the Appellate Division concluded that the meaning of the word "lot" as used in the "Protective Restrictions" was not restricted to a specific "lot" as numbered and delineated on the filed tract map. This purported ambiguity, together with the lack of ...


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