
    Frances Elliott Holt Lewis, Respondent, v. Helen A. Ely and Others, Appellants.
    
      Restrictive covenant in several deeds of lots sold in partition — right to enforce it as against infants — it is effective between lots sold to different purchasers, not between the owners of subdivisions of the.pa/rcels of land sold to one purchaser —. when it is structural, and not against.occupation. . .. ■
    
    Where the deeds ¡executed hy a referee, appointed in a partition- action, to the-purchasers of the various portions of the property -partitioned, contain the following covenant: “The party of the second part, his heirs or assigns, shall not at any time hereafter erect * * * upon the hereby granted premises- * * * any building other than a brick or stone private .dwelling house not-less than three stories in height; * * * the said -covenant * * * to- * * * run with the' land * * *,” such covenant is only effective as between the different parcels sold.
    A purchaser of one of the parcels cannot use his parcel in such wise as to violate-the covenant so far as such covenant inures to the.benefit of the other parcels-sold, but he máy divide the parcel purchased by him into lots, and by omitting-to insert the restrictive covenant in the deeds by which he conveys such lots,, release the lots as between themselves from'the restrictive covenant. .
    
      Semble, that such a covenant is a structural covenant and not oné against occupation, that is to.say. -it relates to the erection of a particular character of building and not to the use to,which the building is put,
    
      Qumre, whether the guardian ad litem for infant parties to a partition suit has-power to consent to the insertion in the judgment óf a provision that the -deeds-executed to purchasers at the partition sale shall contain á restrictive covenant.
    Appeal by the defendants, Helen A. Ely and others, from, a-judgment of the Supreme Court in' favor of the plaintiff j entered in. the office of the clerk of the county of New York on the 18th day •of April, 1904, upon the report of a referee.
    The action is brought to obtain against the defendants an injunction compelling them to remove alterations made in the premises No. 22 West Fortieth street, contiguous to the plaintiff’s property, for violation of a covenant in the deed of a referee in*a partition suit in . 1872 whereby only a private dwelling house could be erected upon this land, the plaintiff alleging that the defendants have made the premises into stores and are so using them.
    Both the plaintiff’s property and that belonging to or used by the defendants were sold in 1872 by a referee in a partition suit to one Sober. The deed to Sober as well as the deeds then given to other purchasers contained the following covenant: The'party of the second part, his heirs or assigns, shall not at any time hereafter erect ■* * * upon the hereby granted premises * * * any'building other than a brick or stone private dwelling house not less than three stories in height; * * " * • the said covenant * * * to * * * run with the land * • * * ”
    It was not shown that the parties to the partition suit consented to the provision in the judgment directing the referee to insert such a covenant in the deeds, and it appears that some of the parties were infants represented by guardians.
    Sober subsequently deeded lot No. 20, lot No. 22 and a third lot to O’Reilly Brothers, the deed containing no such covenant; and thereafter O’Reilly Brothers deeded lot No. 20 without the restriction, and by mesne conveyances not containing the covenant it has come into the plaintiff’s possession. O’Reilly Brothers also conveyed without restriction lot 22 to other parties, and by mesne conveyances not containing the covenant it has come into the possession of certain of the defendants.
    Proof was given tending to show that lot No. 22 has been remodeled to make it fit in part for use as stores, and that it is so used in part, and the referee held that there was a violation of the covenant and that an injunction should issue. The judgment entered'on the referee’s report granted an injunction which compels the defendants to put the premises back into a proper condition for a-dwelling house.
    From such judgment the defendants appeal.
    
      
      F. K. Pendleton, for the appellant Ely.
    
      Paul M. Herzog, for the appellants Rose and others.
    
      George. W. Glaze, for the respondent.
   O’Brien, J.:

There is considerable force in the contention that the restrictive-covenant in the referee’s deed, affecting as it did the value of the land, and inserted, so far as appears, without the consent of the parties to the partition suit, and -particularly the minor children, whose guardians could not consent,, could not be enforced, because the provision of the judgment requiring the reféree to deliver-to purchasers-deeds containing such a restrictive clause was not binding. However this may be, we need not- decide the question for the reason - that there is another consideration which we regard as fatal tó the judgment.

In the original' partition suit in 1812 of Banks v. Banks, wherein the deed was given by the referee, there was property conveyed to-other parties besides that conveyed to Sober through whom and under- whom by mesne conveyances the plaintiff and the defendants acquired' -title to their respective properties. If. we assume, as-we may for the purposes of this discussion, that the covenant in the-referee’s deed was binding and effective, we think that with respect to the parcels sold tó individuals it could be enforced -against them bnly by the owners of other -parcels. Thus Sober having purchased: •the property here in dispute, could,-with réspect thereto,.divide it .into parcels and as between Such parcels could release. the covenant.. In other words, lie- could agree that with respect to the land which he himself owned, the covenant should riot be effective in favor of any of the parcels into which he divided it as against another. This we think lie. had the right to do-notwithstanding the fact -that he could not release the lots from the covenant so far' as it- inured to-the benefit of and could be enforced by purchasers of .the other lots frbm the referee. Differently stated, frith respect to the covenant-as bearing upon the lots purchased by Sober, these became the- servient and the lots purchased by others became the .dominant estate, and, therefore, the necessary legal relation was established entitling the latter to enforce the covenant against those holding title through. Sober.

We take it that the owner of any of the other parcels could have* released his right to enforce the covenant as against any of the lots purchased by Sober ; and, if all the other lot owners in turn released the covenant, it would cease to run. So, too, Sober, owning the two-lots which were subsequently purchased from him by O’Reilly Brothers without the restrictive covenant in the deed (thus indicating an intention on the part of Sober not to continue the covenant as a binding one between the lots so con veyed), and the plaintiff and defendants, having derived their title from the same grantor, Sober,, and none of the mesne conveyances from O’Reilly Brothers having-continued the covenant as between those particular properties, we-see no escape from the conclusion that as between these lots it was-intended that the covenant in question should not be enforced by one of the owners as against the other.

We are aware that this construction of the covenant is contrary to-an expression to be found in the prevailing opinion in Brouwer v. Jones (23 Barb. 153). That expression, however, called forth, a strong dissent from one of the judges writing in that case. At. most it was a dictum because unnecessary to' the decision, it therein, appearing that one at least of the plaintiffs who brought the actions could maintain it because he stood in such relation to the covenant that he could enforce it. The discussion as to whether another plaintiff who obtained his deed before the covenant was made, had a right to maintain it, was, therefore, unnecessary.

The trend of the later cases, notably Equitable Life Assurance Soc. v. Brennan (148 N. Y. 661), is in support of the appellants’ contention that a restrictive covenant creates a burden'of servitude on the lands conveyed in favor of the grantor and successive holders of the dominant tenement and no other. As correctly urged, Sober, when he purchased the three lots, held them free from all restriction except in favor of the other lots sold. The deed to Sober created only a, burden in favor of the grantors of the property, and with respect to-his own lots it would be anomalous to assert that he could enforce as-against himself a covenant in favor of one lot against the other, to-both of which at the same time he held title. If we proceed upon.' the same lines, it is difficult to find reason or authority for holding; that as between' the O’Reilly lots there existed a covenant which •could be enforced except in favor of other lot owners who derived their title through the' referee and who, therefore, as owners- of the •dominant estate could enforce the covenant.

Considering the wording of this restrictive covenant and having in'mind that a rigid rule of construction must be applied, much might be said in support of the view that it is a structural covenant and not one against occupation. In other words, there is force in the contention .that, strictly construed, the covenant, is one which relates to the erection of a particular character of building and does not relate to the use to which the building is put. '

In Clark v. Jammes (87 Hun, 215) the presiding justice of this court in writing the opinion said : “ In the construction of restrictive •covenants of this kind, it must be borne in mind that they áre to be -construed most strictly against the covenant; and, unless the thing • •enjoined is most plainly within the provisions of the covenant, an injunction will not issue.”

Whether the erection upon this property of what was strictly a dwelling house fulfilled the terms of the covenant and whether the mse to which part of it is to be put is inconsistent with its use as a private dwelling, we think unnecessary to determine,' placing our decision upon the- proposition, which we think is sound, that the plaintiff and the defendants here, who are the owners of the two lots which were owned by Sober and conveyed by him to O’Reilly Brothers and subsequently to the parties to this action, had no right to enforce this covenant one against the other.

We think, therefore, that the judgment should be reversed and a mew trial ordered, with costs to the appellants to .abide the event.

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Patterson, J., concurred in result".

Judgment reversed, new trial ordered, costs to appellants to abide •event. ,  