
    Harry Levin, Respondent, v. Frank M. Hill and William R. Rose, Appellants, Impleaded with Max Monfried, Defendant.
    First Department,
    February 8, 1907.
    Vendor and purchaser—express covenant that lands are free from certain restrictions — vendee not charged with notice of recorded deed . co'ntradicting such covenant.
    When a vendor covenants to convey real estate free of all1 incumbrances “ except existing covenants as to nuisances, if any, which do hot, however, prevent the-erection of stores or tenement houses,” and it is shown that the premises are subject to a restrictive covenant prohibiting the erection of ahy building less than two stories in height of any building without a- cellar or any building costing less than §3,500, the title is not free of incumbrances and the vendee is entitled to recover the earnest money.
    In such case a vendee is not chargeable with notice of such covenant, although it is of record, if the contract of sale does- not specify any particular deed but -speaks generally o.f,covenants-against-nuisances.
    
      Oontm■„ if the contract .provide that" the premises are to be taken subject to a covenant against nuisances in a.specified deed.. In such case the purchaser, is charged with notice thereof.
    Appeal, by the defendants, Frank M. Hill and another,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 7th day of May,'1906, upon the decision of the court rendered after a trial at the Hew York Special Term.
    
      Hillquit & Hillquit, for the appellant Hill.
    
      Gibson Putzel, for the appellant Rose.
    
      Michael Schaap, for the respondent.
   Houghton, J.:

The appellant Rose contracted to sell certain real estate to appellant Hill, who assigned the contract to defendant Monfried* who in turn assigned it to respondent, who brings this action to recover back the moneys paid, on the ground that the premises are subject to a restrictive covenant not provided for in the contract.

The contract of sale stipulated that the premises should be free from all incumbrances except existing covenants as to nuisances, if any, which do not, however, prevent the erection of stores or tenement houses.” In the deed to Rose, which was recorded on the 7th day of May, 1900, four years and more before the contract in controversy was made, there was a covenant running until January 1, 1910, against nuisances, in the ordinary form, to which, however, was added the further covenant that neither the grantee nor his grantees should erect or permit to be erected upon any portion of said premises any building less than two stories in height, or any building without a cellar-; * * * that neither he nor they will erect or permit to be erected upon any part of said premises within sixty feet of West Farms Road, on which said lots front, any building costing less than Twenty-five hundred dollars.”

Title was rejected on the ground that the contract did -not provide that the premises should be taken subject to the covenant above quoted, because it could not be classed as a covenant against nuisances; and that even if the whole covenant could be read as one against nuisances, still it was contrary to the agreement because it prevented the erection of a store or-tenement of one story in height, and prescribed that the cost should not be less than $2,500, and that there should be a cellar underneath the building.

It seems plain that the covenant is more than one against nuisances only. But even if the covenant be construed as an entire one against nuisances, ■ it .did prevent the erection of stores and tenements, because it prevented the erection of a store or. tenement one story in' height; and it '.prevented the erection of a building without a cellar, and it restricted the cost to not less- than $2 500, The contract provided that the premises should be free and clear except as to existing covenants as to nuisances, if any there might be, which did. not, however, prevent the erection of stores' or tenements.

The owner contracted to give. a clear title except as specified-The title which lie tendered was not cleai, but was burdened with a covenant which prevented the free use of the property for stores or tenements. This was contrary to the agreement,' and the respondent, was justified in rejecting the title, unless the fact of the deed containing the objectionable covenant being'on record precludes him from so doing. I do not think it does. The contract - of sale does not specify a covenant in any particular deed. It speaks generally of covenants against nuisances if any there are. The owner took the responsibility of contracting absolutely for a clear title, except that if there were any covenants against nuisances, they should not operate against the building of stores or tenements. If the contract had provided that the premise? were to be taken subject to a covenant against nuisances in a specified deed, then the purchaser at his peril must have examined the deed. Such was the situation in Feltenstein v. Ernst (49 Misc. Rep. 262; affd., 113 App. Div. 903) and in Blanck v. Sadlier (153 N. Y. 551). In each of those cases the premises were to be taken subject to a specified mortgage, and it was held that the mortgages being recorded it was incumbent upon the' vendee,, in the absence of fraud or deceit, to acquaint himself with the particular terms of the specified incumbrance. In the present case no particular covenant in any specified deed is mentioned, but it is .simply provided in general terms, that . if there be any covenant, it shall be of a specified kind. - The owner knew what the covenant was and. carelessly contracted "as to its terms. The vendee had no actual knowledge, and it does not seem to me that he had constructive notice or that he was put upon, his inquiry.

I think the judgment .was right and should be affirmed.

McLaughlin, Scott and. Lambert, J<L, concurred.

Patterson, P. J. (concurring):

I concur on the ground that the covenant is more than one against nuisances, "and therefore, the purchaser should not be compelled to take.

Judgment affirmed, with costs. Order filed. ■  