
    George Peabody Wetmore, App’lt, v. Catharine W. Bruce, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    1. Specific performance—Marketable title—Restrictive covenants.
    A title is not free and clear from all incumbrance where former deeds have contained a covenant that twelve feet of the front of the lot and of the other lots in the block should not at any time be built upon, but should be forever left open for court yards, where such restriction does in. fact damage the property and injures its salability and marketability
    
      (Biggs v. Pursell, 66 ÍT. Y., 193, distinguished.)
    
      2. Same—Counterclaim.
    Where a purchaser justly refuses to take on account of a cloud on title, it is not error, where an action is brought to compel him to do so, to render judgment in his favor for a counterclaim embracing the percentage paid on purchase, the expense of examination of title and auctioneer’s fees.
    Appeal from a judgment of the general term of the superior court of the city of New York, affirming a judgment of the special term of that court.
    
      William Man, for app’lt; Gliarles Jones, for resp’t.
    
      
       Affirming 22 J. & S., 149.
    
   Parker, J.

This action was brought to compel the defendant to specifically perform an agreement made by her to purchase the house and lot No. 19 Washington Square, North, in the city of New York.

The defendant in her answer, among other objections to the title, averred that the former owners of the land in the block in which the house and lot are situated had mutually covenanted and agreed that twelve feet of the front of the lot in question, and of the other lots in the block, should not at any time be built upon, but should be forever left open for court yards. That such agreement was in full force, and constituted a restriction and incumbrance which depreciated the value of the property.

The defendant by way of counterclaim alleged that she had sustained damages, because of the inability of plaintiff to give a title free and clear of all incumbrances, consisting of the percentage paid on account of the purchase price, the auctioneer’s fees, and the expenses paid for examining the title.

The plaintiff in his reply admitted the making of the agreement set forth in the answer; but denied that it amounted to an incumbrance or restriction in the proper meaning of the words, or that it impaired the value of the premises.

It is entirely competent for adjoining owners of land, by grant, to impose mutual and corresponding restrictions upon the lands belonging to each for the purpose of securing uniformity in the position of buildings.

The covenants being mutual and imposing such restriction in perpetuity are in effect reciprocal easements, the right to the enjoyment of which passes as appurtenant to the premises. Observance of such a covenant will be enforced by a court of equity. Lattimer v. Livermore, 72 N. Y., 174; Trustees v. Lynch, 70 id., 440; Phœnix Insurance Co. v. Continental Insurance Co., 87 id., 400; Perkins v. Coddington, 4 Robt., 647.

The title, then, which the plaintiff tendered was not free and clear from all incumbrance, for certainly a covenant, valid and enforceable in equity, which so limits and restricts the use of twelve feet in depth along the entire front of a city lot as to prevent building thereon, is an incumbrance.

Upon the trial the plaintiff, by evidence tending to snow that the existence of the agreement did not depreciate but rather enhanced the value of the premises, sought to bring the case within the decision of this court in Riggs v. Pursell, 66 N. Y., 193.

In that case the purchaser at a judicial sale refused to take title. The court said: “While the agreement requires that a court yard shall be left in front of this lot for the benefit of the other lots on the street, it also requires that a court yard shall be left in front of all the other lots for the benefit of this, and all the houses on the street have been built in conformity to this agreement. While this agreement may, in one sense, be regarded as an incumbrance upon this lot, it cannot be assumed without proof that it injuriously affects its value to any extent whatever.” And it was held to be an immaterial defect.

But in the case before us the trial court found that the restriction and incumbrance created by the covenant and agreement did, in fact, damage the property and injure its salability and marketability. The general term having affirmed the finding, it cannot be reviewed here, as there is some evidence to support it.

As the case is now presented, therefore, Riggs v. Pursell cannot be invoked in aid of the appellant, and it is unnecessary to consider whether the doctrine of that case would be applicable to a private sale where the vendor contracts to give a good title, in fee simple, free and clear of all incumbrances. It follows that the refusal of the court to decree specific performance must be .sustained.

It was not error to render judgment in favor of the defendant for the percentage paid at the time of purchase, the expense incurred in the examination of title, and the auctioneer’s fees. Cockcroft v. N. Y. & H. R. R. Co., 69 N. Y., 201.

The appellant contends that the finding of the trial court that the defendant did not have notice of the restriction is wholly without evidence to support it, and an exception having been taken, an error of law is presented which demands a reversal of the judgment.

A reversal will not be granted when a finding is made without evidence to support it unless it is a material fact, and to. some extent at least gives support to the judgment rendered.

The defendant insisted upon the rights secured to him by his contract. He had but to demonstrate that the deed tendered failed in a material respect to comply with its terms in order to become entitled to the judgment rendered. It might have availed the plaintiff, could he have shown that the defendant had notice of the restriction and purchased with full knowledge of its existence and effect. But in the absence of evidence warranting a finding to that effect the defendant was not aided, nor the plaintiff harmed by a contrary finding.

The other facts found by the trial court abundantly sustained its conclusion of law. The error complained of therefore does not justify a reversal of the judgment.

There are no other questions requiring consideration.

The judgment should be affirmed.

All concur, except Haight, J., not voting.  