
    TRUSTEES OF COLUMBIA COLLEGE v. THACHER.
    
      [Reversing 46 Super. Ct. (J. & S.) 305, and qualifying 70 N. Y. 440.]
    
      N. Y. Court of Appeals,
    
    
      January, 1882.
    
      Covenant Restricting Use op Real Property.—Change in Surroundings.—Elevated Railway.—Injunction.—Costs.
    If for any reason not referable to the parties, the enforcement of a covenant restricting the use of real property would defeat the object intended, by its execution; or, if the condition of the neighborhood and the surroundings of the premises have become so altered that the terms and restrictions of the covenant are no longer applicable to the existing state of things, and its performance would be onerous to one party, and of little benefit to the other, a court of equity will refuse to interfere to secure its specific enforcement.
    Plaintiff and defendant’s remote grantor entered into a covenant that adjoining premises owned by them, including those in question, should not be used for “ any kind of manufactory, trade or business whatsoever.” Subsequently an elevated railway was erected and operated, and a station established directly in front of the premises. In an action for an injunction to restrain the violation of such covenant,—Held, that the construction of such road and its management having so affected the premises, and all those owned by the covenantor, that neither their better improvement nor permanent value, which had been the object of the covenant, could be promoted by its enforcement, and a contingency having arisen which was not within the contemplation of the covenanting parties, their scheme was frustrated, and the covenant cannot stand in a court of equity. The complaint was therefore dismissed.
    
      The result is the same, though the influence of the road be felt by a portion only of the property affected by the covenant.
    This result being made necessary by events occurring after the commencement of the action,—Held, that such dismissal should be without costs.
    The trustees of Columbia College, in the city of New York, brought this action in the superior court of the city of New York, against Anna M. Lynch and others, to restrain the permitting, establishing, or carrying on of any trade or business on certain premises situated on the corner of Fiftieth street and Sixth avenue, in said city, which were owned by said Anna M. Lynch. The title having subsequently been conveyed to Thomas Thacher, he was, by order, made a party defendant.
    The complaint alleged the making, in 1859, of a covenant between plaintiff and one Joseph D. Beers, then the owner of said and other adjoining premises, whereby said Beers covenanted and agreed that he, his heirs or assigns, or their tenants, “should not permit, grant, erect, make, establish, or carry on, in any manner on any part of said lands, any stable, school-house, engine-house, tenement or community-house, or any kind of manufactory, trade or business whatsoever.” It was expressly agreed that said covenant should run with the land. A chain of conveyances to defendant was set out, and a breach of the covenant alleged. It had been already held in 70 N. Y. 440, reversing 39 Super. Ct. (J. & S.) 372, that the covenant was enforceable, in the absence of evidence as to change in the neighborhood.
    The answer of the defendant Thacher admitted his ownership and the execution of said agreement, but denied that the business carried on violated the covenant or defeated or militated against its object or purpose, or deprived the plaintiffs of its substantial benefit. It further alleged, among other things, “a great and impressive change in the character of this locality, the surroundings of these premises, the occupation and use of contiguous property and of the business of the vicinage, which has rendered it inexpedient to observe the covenant . . and a disregard of it indispensable to the practical and profitable use and occupation of the premises ... a change so extensive in its influence, so cardinal and distinctive in its character, that it is impossible it was foreseen or contemplated by said Beers when he originally impressed this easement, in favor of the plaintiffs, upon these premises.”
    
      The Superior Court, at special term, gave judgment in favor of plaintiffs, granting the injunction prayed for, the court holding that there had not been such a change in the character of the locality as would relieve defendant from an observance of the covenant. The general term affirmed this judgment (46 Super. Ct. [J. & S.] 305), and defendant appealed.
    
      A. J. Dittenhoefer and John F. McIntyre, for appellant.
    
      Stephen P. Nash and G. D. L. Harison, for respondents.
   Danforth, J.

The validity and binding obligation of the covenant cannot be questioned by the defendant (70 N. Y. 440). Moreover, it appears that he bought with notice, not only of the agreement, but of this action. He, therefore, could not take the property without performing the obligation attached to it, and must be deemed to have taken it at his own peril, to the extent of such judgment as might be rendered in the action. It is claimed in his behalf that the business charged in the complaint to have been carried on, does not come within the prohibition of the covenant. This question was not raised upon the former trial, and of coarse there is nothing in our decision (70 N. Y. supra) to prevent its litigation upon the trial then ordered and now under review’.

The words are very plain ; they include “any kind of manufactory, trade or business whatsoever,” upon the premises. The complaint shows their occupation in part by “a real estate and insurance broker or agent,” and in part by “sign and fresco painters,” while the finding of the trial judge—and this is somewhat more important—shows that “ the business of a tailor or milliner, of a newspaper agent, express carriers, a tobacconist, as well as that of an insurance agent,” were carried on by permission of the defendant at the time of the trial.

It would be a useless waste of time to argue that these vocations for employment or profit—whether described in the complaint, or found by the court— have no relation to the exclusive use to which the premises were set apart. In such a suit as this, the relief which the court can give must depend upon the condition of things at the time of the trial. We have no doubt that the conclusion of the trial judge was right upon the point presented, and agree with him that these several trades or businesses were violations, not only of the spirit, but also of the letter of the covenant.

Now, having before us a covenant binding the defendant, and his breach of it, if there is nothing more, then the usual result must follow, viz. : an injunction to keep within the terms of the agreement; for the case would come under the rule laid down in Tipping v. Eckersley (2 K. & J. 264, 270), thus: “If the construction of the instrument be clear and the breach clear, then it is not a question of damage, but the mere circumstance of a breach of covenant affords sufficient ground for the court to interfere by injunction.” Indeed, this has in substance been recognized in the decision before made by us (70 N. Y. supra). It was then, however, suggested that another trial might disclose objections not before us, and it is now claimed by the appellant, that there has been such an entire change in the character of the neighborhood of the premises as to defeat the object and purpose of the agreement, and that it would be inequitable to deprive the defendant of the privilege of conforming his property to that character, so that he could use it to his greater advantage, and in no respect to the detriment of the plaintiff.

The agreement before us recites that the object which the parties to the covenant had in view was “to provide for the better improvement of the lands, and to secure their permanent value.” It certainly is not the doctrine of courts of equity to enforce by its peculiar mandate every contract, in all cases, even where specific execution is found to be its legal intention and effect. It gives or withholds such decree according to its discretion, in view of the circumstances of the case, and the plaintiff’s prayer for relief is not answered where, under the circumstances, the relief he seeks would be inequitable (Peters v. Delaplaine, 49 N. Y. 362; Margraf v. Muir, 57 Id. 155; Mathews v. Terwilliger, 3 Barb. 50; Radcliffe v. Warrington, 12 Ves. 331).

If for any reason, therefore, not referable to the defendant, an enforcement of the covenant would defeat either of the ends contemplated by the parties, a court of equity might well refuse to interfere, or if in fact the condition of the property by which the premises are surrounded has been so altered “that the terms and restrictions ” of the covenant are no longer applicable to the existing state of things (1 Story Eq. Jur. 10 ed. § 750). And so, although the contract was fair and just when made, the interference of the court should be denied, if subsequent events have made performance by the defendant so onerous that its enforcement would impose great hardships upon him, and cause little or no benefit to the plaintiff (Willard v. Taylor, 8 Wall. 557; Thompson v. Harcourt, 2 Brown Parl. Cas. 415; Davis v. Hone, 2 Schoales & Lef. 341; Bailey v. De Crespigny, 4 L. R., Q. B. 180; Clarke v. Rochester, L. & N. F. R. R. Co., 18 Barb. 350).

There is, no doubt, difficulty in embodying these principles in any general rule applicable alike to all cases, but in any given instance a court can more easily determine whether it should interfere, or leave the plaintiff to his remedy at law.

In Clarke v. Rochester, L. & N. F. R. R. Co. (supra), there was a duty imposed by statute upon the defendant to construct a farm-crossing, and the plaintiff sued in equity for its performance. He succeeded at special term, but the general term dismissed his compla'nt, so far as it demanded equitable relief, yet allowed it to stand for assessment of damages. This result was reached, because the expense to the defendant in constructing the crossing “would much exceed the value of it to the plaintiff,” and so in the opinion of the court there was not only an absence of proof that the enforcement of the performance of the duty would be equitable, but it was affirmatively proved that it would be inequitable.

There the plaintiff’s case was within the statute (L. 1850, c. 140, §§ 50, 49, 44), requiring railroad corporations to erect farm-crossings for the use of the proprietors of land adjoining such railroad—and so the court held—but also that a refusal to perform did not, as of course, entitle the plaintiff to the interposition of a court of equity. In Willard v. Taylor, supra, the court refers to cases where a claim had, in the discretion of the court, been denied, because of some irregularity or unfairness in the terms of the contract, by reason of which injustice would have followed a specific performance, and to others which show that the same discretion is exercised when the contract is fair in its terms, if its enforcement, from subsequent events, or even from collateral circumstances, would work the same result, or even hardship, to either of the parties.

In that case, although relief was granted, it was upon reasons which do not concern the one in hand, and it was also said that it was “ not sufficient to call forth the equitable interposition of the court; that the legal obligation under the contract to do the specific thing desired may be perfect, but it must also appear that the specific performance will work no hardships or injustice.” In Thompson v. Harcourt, supra, the irregularity of the bargain related exclusively to the time when performance was demanded. In Bailey v. De Crespigny, supra, we find a case whose facts come near to those before us. The action was at term for damages for breach of an agreement that neither the defendant nor his assigns would permit any building to be' placed upon a certain “ paddock” fronting the demised premises. The plea alleged the purchase and a compulsory taking of it by a railway company for the purposes of their incorporation, and the erection upon it by them of the structure complained of as a breach of covenant. Upon demurrer judgment was given for the defendant, upon the ground that the transfer to the company was not by voluntary act of the prior owner, but by compulsion of law, and the court was of opinion that he was discharged from his covenant, on the principle expressed in the maxim lex non cogit ad impossibilia.”

"Now in the case before us the plaintiffs rely upon no circumstance of ^equity, but put their claim to relief upon the covenant and the violation of its conditions by the defendant. They have established by their complaint and proof a clear legal cause of action. If damages have been sustained, they must in any proper action be allowed. But on the other hand, the defendant has exhibited such change in the condition of the adjacent property, and its character for use, as leaves no ground for equitable interference, if the discretion of the court is to be governed by the principles I have stated, or the cases-which those principles have controlled.

The general current of business affairs has reached and covered the entire premises fronting on Sixth avenue, both above and below the lot in question. If this was all, however, the plaintiffs would be justified in their claim, for it is apparent from the agreement that such encroachment was anticipated, and that the parties to it intended to secure the property in question from the disturbance which business would necessarily produce. But the trial court has found that since the action was begun, an elevated railway has been built in the Sixth avenue. It runs past the premises, and a station has been established in front of them, at the intersection of Fiftieth street. He finds that “ the railway and station affect the premises injuriously, and render them less profitable for the purpose of a dwelling-house, but do not render their use for business purposes indispensable to their practicable and profitable use and occupation.” The evidence sustains the finding. The premises may still be used for dwellings, but the occupants are not likely to be those whose convenience and wishes were to be promoted by the covenant. Persons of less pecuniary ability, and willing to sacrifice some degree of comfort for economy, transient tenants of still another class, whose presence would be more offensive to quiet and orderly people who might reside in the neighborhood. Not only large depreciation in rents when occupied, but also frequent vacancies have followed the construction of the road. Its trains, propelled by steam, run at intervals of a few minutes until midnight. The station covers from fifteen to twenty feet of the street opposite the defendant’s premises. Half the width of .the .sidewalk is occupied by its elevated platform. From it, persons waiting for the trains, or there for other purposes, can look directly into the windows. Noise from its trains can be heard from one avenue to the other.

It is obvious, without further detail, that the construction of this road and its management have rendered privacy and quiet in the adjacent buildings impossible, and so affected the premises of the defendant, and all those originally owned by him, who with the plaintiff entered into the covenant, that neither their better improvement nor permanent value can 'be promoted by enforcing its observance.

Nor are the causes of this depreciation transient. The platform of the railroad station, which renders inspection of the interior of the houses easy to all observers, the stairs, which render the road accessible, must remain so long as the road is operated, and the noise and smoke are now at least an apparent necessity consequent upon its operation. It is true, the covenant is without exception or limitation, but I think this contingency which has happened was not within the contemplation of the parties. The road was authorized by the legislature, and, by reason of it, there has been imposed upon the property a condition of things which frustrates the scheme devised by the parties, and deprives the property of the benefit which' might otherwise accrue from its observance. This new condition has already affected in various ways and degrees the uses of property in its neighborhood, and property values. It has made the defendant’s property unsuitable for the use to which, by the covenant of his grantor, it was appropriated, and if in face of its enactment, and the contingencies flowing from it, the covenant can stand anywhere, it surely cannot in a court of equity.

The land in question furnishes an ill seat for dwelling-houses, and it cannot be supposed that the parties to the covenant would now select it for a residence, or expect others to prefer it for that purpose. And although the land has not itself been taken, as in Bailey v. De Crespigny (supra), for actual occupation by the railroad, the railroad has encumbered the walks and streets about, it, and taken away those advantages of situation which induced its owners to dedicate it to dwellings instead of stores, and to retirement, rather than to the bustle of business. Submission to this is • necessary, because it is authorized by the legislature, and so the defendant is made incapable of carrying out, if he should desire it, the wishes of those by whose agreement, he would otherwise be bound.

There is, I think, no merit in the respondent’s suggestion, that the change in the character of the neighborhood is insufficient, so long as it does not extend to all the property affected by the agreement. If this assumption is well founded—if the influence of the road is felt only by the portion of land owned by the defendant, it is still apparent that the original design of the parties has been broken up by acts for which the defendant nor his grantors are responsible; that the object of the covenant has been, so far as the defendant Is. concerned, defeated, and that to enforce it would work oppression and not equity.

To avoid this result, the judgment appealed from should be reversed and the complaint dismissed ; but as this result is made necessary by reason of events occurring since the commencement of the action, it should be without costs.

All the judges concurred.  