Beckwith v. Pirung

Burr, J.: Although the allegations of the complaint are somewhat vague and indefinite, we think that it maybe fairly inferred that the parcel of ground owned by the plaintiff Mary E. Beckwith, and that owned by the defendant Barbara Pirung, were each within the boundaries of Ditmas Park, and included in the general plan for the itnprovment thereof. Each of the deeds of lots within the said park, including those through which these parties claim title, contained restrictive covenants, substantially similar in form, except that in some it was provided that the cost of the dwelling house to be erected on the property therein described should be not less than $5,000, and in others that such cost should be not less than $4,000. The property owned by the plaintiff Beckwith belonged to the latter, and that owned by the defendant Pirung to the former class. This covenant provided as follows (¶ 1): “ That neither the said party of the second part, nor his heirs or assigns, shall or will erect or permit upon any portion of the said premises, any building except a detached dwelling house or church, and that said house shall be constructed for one family only, shall have a cellar and shall be not less than two stories in height, shall cost not less than Four (or Five) Thousand Dollars, and-shall not have a roof of the character or description known as a flat roof.” The covenant then contained other provisions relative to the size of the plot upon which a dwelling might be erected, prohibiting the use of the same for business or manufacturing purposes, providing as to the manner of inclosure, the position of the' building with reference to the street, the grade of the plot upon which the building stood, and the approach thereto. Then followed another clause in these words [610] (¶ 9): “ That neither the said party of the second part, nor his heirs or assigns, shall or will erect or permit upon any portion of the said premises, any public or private stable for horses or other animals, nor any pig sty, cow shed, hen house, slaughter house or other nuisance of any kind, description or nature. The' above covenants in each and every particular to run with the land and shall be construed as real covenants running with-the land until January, 1925, when they shall terminate.” Each of these covenants restricting the use of the several owners of the land upon the said tract was mutual in character and might be enforced by any of the owners of land deriving title from a common source by deeds containing similar covenants of restriction. (Korn v. Campbell, 192 N. Y. 490; Silberman v. Uhrlaub, 116 App. Div. 869.) The only remaining question, therefore is, Does the complaint allege that the defendants or either of them are doing any act in violation of the provisions of said covenant ? The complaint alleges that the said defendants are about to erect upon the property owned by the defendant Barbara Pirung “ a building one story high, about fourteen feet by seventeen feet,” to be used as a garage, which building is connected with the dwelling house of the said defendant, standing upon the same plot of ground. We agree with the learned judge at Special Term that the general scope and intent of these restrictive covenants was to limit the use of the Ditmas Park property to residential purposes, and that, too, of a private' character, and to define the general method of improvement of the same. We do not agree with him that the purpose of paragraph 9 of the restrictive covenant above quoted was to recognize “ subsidiary structures serving the convenience of a domestic establishment ” and to regulate that subject. We think that it could never be claimed, for example, that a “ slaughter house ” was a subsidiary structure to a domestic establishment. We think rather that paragraph 9, while perhaps unnecessary, was intended to emphasize the purpose of preserving the character of the property as residential property of a desirable class. Is either the spirit and intent or the letter of the covenant violated by the erection of a garage such as this one is intended to be? There is no allegation that it is to be of a public character. Its dimensions would hardly make that possible. If after its erection an attempt should be made to use it for such a purpose, and to thus [611] carry on the business of storing automobiles for hire, a different question would be presented. We think that this structure is incidental to the reasonable use of property for residential purposes. If one having a fondness for flowers should attach to his residence a small extension for the purpose of a conservatory or greenhouse, or being a lover of music, should attach a similar extension to be used as a private music room, or being a patron of art, should in like manner construct a building to be used as an art gallery, we think it could hardly be claimed that this was a violation of the covenant. However much we may differ upon a question of taste, it seems to us that if one has a fondness for automobiles, and desires to build an addition to his dwelling house for the storing of his own automobiles, it cannot be claimed that he is destroying the character of the property as residential property, or devoting any portion of it to a use which is not fairly incidental thereto. We think that the judgment appealed from should be affirmed, with costs. Hirsohberg, P. J., Woodward, Rich and Miller, JJ., concurred. Judgment affirmed, with costs.