Breese Norrie v. United States Realty & Improvement Co.

Newburger, J. Plaintiff is the owner in fee of four four-story brownstone houses, known as Nos. 33, 35, 37 and 39 East Twenty-second street, in this city, and she resides in No. 35, and the defendant is the owner of Nos. 41 and 45 East Twenty-second street. Plaintiff has lived in this locality for upwards of twenty-five years. That the houses on the same side of the street have all had their southerly outside walls a distance of seven and one-half feet from the northerly line of East Twenty-second street. That the reason the buildings were set back was because of a restrictive covenant entered into by Philip Kamey, from whom plaintiff and defendant and the other property owners derived title. That on thé 23 d day of December, 1915, defendant tore up the court-yard in front of No. 45 East Twenty-second street and began the-erection of a wall about ten feet high, extending its premises a distance of eleven and one-half feet out. While the neighborhood has changed from a residential to a business section, nevertheless it appears that although new buildings devoted to business have been erected, there have been no encroachments upon the seven and one-half-foot restricted area on the northerly side of the street upon which is the house owned by plaintiff and defendant, except the -corner building, which, it is claimed, is not included in the restrictive agreement. That on the south side of said -street, although new buildings have been erected, all have carried out the restrictive covenants with the exception of three [328] buildings. It will be noticed that while the neighborhood has changed, the owners on the northerly side and the majority on the southerly side of the street have carried out the restrictive agreement. In Rowland v. Miller, 139 N. Y. 103, it is said: “ But it is contended that the restriction agreement ought not in this case to be enforced, because most of the lots in the block between Forty-second and Forty-third streets and Madison avenue and Vanderbilt avenue are no longer occupied for residences, and are devoted to business purposes, and the counsel for the appellant cites as an authority on this point our decision in the case of the Trustees of Columbia College v. Thacher. The principles of that case are not applicable to the facts of this. There it appeared that the contract which the plaintiff sought to enforce was no longer of any value to it, and that its enforcement would result in great damage to the defendant, without any benefit to any one. Here the plaintiff has the right to occupy her house as a residence, and in such occupation to have the protection of the restriction agreement. She has never violated the agreement herself, or consented to or authorized or encouraged its violation by others. In order to have the benefit of the agreement, she is not obliged to sue all its violators at once. She may proceed against them seriatim, or she may take no notice of the violations of the agreement by business carried on remotely from her residence, and enforce it against a business specially offensive to her by its proximity.” See, also, Deeves v. Constable, 87 App. Div. 357; Lattimer v. Livermore, 72 N. Y. 181. In Bachelor v. Hinkle, 210 N. Y. 243, cited by defendant, the court said the defendant’s property does not adjoin the plaintiff’s property, and is one hundred and fifteen feet distant, and the building proposed will not interfere with the plaintiff’s view. It furthermore [329] appeared that all of -the court-yards on the block had been removed and the space built upon. In McClure v. Leaycraft, 183 N. Y. 36, the restrictive covenant was for twenty-five years, of which nineteen had passed, and stores and apartments had been erected in the neighborhood. The plaintiff residing on the property, the restrictive covenant having’ been observed by the greater part of the owners in the block, the application for an injunction pendente lite is granted. Application granted.