Simons v. Mutual Construction Co.

McLaughlin, J.: This is-a-submission of -a controversy pursuant to the provisions of the Code of Civil Procedure -(§§ 1279-1281). The parties are the Owners of adjoining lots -situate on -the -southerly side -of the Southern boulevard in the city of New York.. They derived their titles -by mesne -conveyances from the executors of the last -will 'and testament -of Philip Pater., In 1868 the executors con veyed the lots in question with other lands, to one Arnold, and this conveyance contained the following covenant: “ The party of the second, part hereby covenants with the -party of the. first part that there shall not be erected, made or carried on upon any part of said premises any livery stable, coal yard, slaughter house, meat shop-tallow chandlery, -steam engine, smith-shop, forge, furnace, brass foundry, nail or other iron factory, or any manufactory of: glass, gun powder, starch, glue, varnish, vitriol^ ink or turpentine, or any cooper’s, carpenter’s or cabinet-maker’s shop or any establishment for tanning, dressing, preparing or keeping, skins, hides or leather, or any brewery, distillery, sugar or other bakery, lager beer establishment, theatre, opera bouse, circus, menagerie, or public show or exhibition of animals, or other public show or spectacle, or any-other trade, manufactory, business or calling which may in any wise be dangerous, noxious or offensive to the neighboring inhabitants.That this covenant shall run with the land and bii-¿d the heirs and assigns of said party o-f the second part, owners of said land.’’ . The defendant has filed w-itli the -building department plans and'specifications for the erection of two buildings, on its property. These' buildings are to be five stories in height and to accommodate four families on each floor and are what is commonly known as tenement [721] houses. One of the buildings is to contain two stores on a level with the street, one to be devoted to the sale of bread, cakes and confectionery. In the cellar, directly underneath this store, there is to be provided a storeroom for the use of the tenants in the house, a boiler room, and a bakery for the baking of bread and cakes. The bakery is to occupy a space twenty-five by thirty-five feet and nine feet high. It is to contain two bake ovens, each measuring in the clear eleven feet four inches by thirteen feet four inches and projecting from the rear house line into the yard of the most westerly of the two houses. The ovens are to be independent of the rest of the building, and to have no connection with it except in the manner stated. The question presented is whether the erection, maintenance and use of these ovens will constitute a violation of the covenant above quoted. If so, then judgment is to be given for the plaintiff restraining the defendant from erecting such ovens or ovens of like character or description ; if not, then judgment is to be given for the defendant, dismissing the action. I am of the opinion the plaintiff is entitled to judgment-. First, if effect be given to the words used, “ shall not be erected, made or carried on upon any part of said premises any * * * bakery,” then the covenant expressly prohibits the erection, maintenance and use of a bakery. Second, it seems to me it was clearly the intention of the parties (and this really is the test to be applied to a covenant of this character — Kitching v. Brown, 180 N. Y. 414) to restrict the use of the premises in such a way that the same would not “ be dangerous, noxious or-offensive” to persons occupying the land conveyed for residential purposes. That it was not thus occupied at the time of the conveyance is of no importance because the covenant looked to the future, and it was then to be as effective as when made. Otherwise, the words “ This covenant shall run with the land and bind the heirs and assigns of said party of the second part” would not have been used. When the whole covenant is considered it seems clear it was the intention of the parties to confine the use of the land conveyed to dwelling purposes or business which would not be noxious or offensive to those who occupied it in that way. It certainly cannot be said that the use of two bake ovens of the size [722] located and to be used as thetwo in question are intended to be would not be noxious or offensive to persons using other portions of the property — including that adjoining — for residential purposes. To some persons the odors arising from the use of these ovens might be as offensive or annoying as odors arising from the carrying on of many of the other kinds of business prohibited. If these views be correct,- then the plaintiff is entitled to a judgment under the stipulation restraining the defendant from erecting the bake ovens referred to in the submission or ovens of á like character or description. It follows that the plaintiff is entitled to judgment as prayed for in the stipulation. Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., dissented. . .