
    Robert C. Voorhies v. William H. Anthon.
    The defendant and two associates, owners of houses and lots on 21st street, entered into an agreement with the plaintiff, by which they severally bound themselves to pay to him the sum of $200, in consideration of his erecting on certain lots in the rear of those owned by themselves, three or more dwelling-houses, covering the entire front of his lots, of such character and description as to be ineligible for tenement-houses, or for any trade or occupation likely to be offensive or injurious to them. He erected four dwelling-houses, covering the entire front of Ids lots, but one of them was constructed with a carriage-way or passage, unconnected with the house, but opening on the street, and leading to the rear of the lot, so that stables or other buildings might have been erected, having a common entrance and exit by the carriage-way, on the rear of each lot.
    
      Held, that as the manifest object of the defendant and his associates was to prevent the erection on the plaintiff's lots of any building that might operate as a nuisance to themselves, and as the opening of the carriage-way would enable the plaintiff to erect such buildings, should he deem it expedient, it was a breach of the spirit and intention of his agreement, and, therefore, a bar to his recovery of the sum which the defendant had stipulated to pay.
    Verdict for plaintiff set aside, and order granting a new trial affirmed, with.costs.
    (Before Dues, Bosworth and Siosson, J.J.)
    Heard, October;
    decided, December, 1855.
    Appeal by the plaintiff from an order at Special Term, setting aside a verdict for the plaintiff, and granting a new trial.
    The action was brought to recover the sum of $200, with interest, which the plaintiff alleged to be due to him from the defendant, under the following agreement, which is set forth in the complaint, and was read in evidence on the trial.
    This agreement, made this seventh day of March, one thousand eight hundred and fifty-four, between William H. Elphinstone, James B. Colgate, and William Henry Anthon, parties of the first part, and Robert C. Voorhies, party of the second part, witnesseth:
    Whereas the parties of the first part are the owners of the premises numbers one hundred and twelve, one hundred and fourteen and one hundred and sixteen East Twenty-first street, in the city of New York, respectively.
    And whereas, it is important to the said parties of the first part that the lots immediately in the rear of said premises, and also the lot adjoining said rear lots on the west, should be improved as speedily as possible, by the erection thereon of genteel dwellingnouses, equal, in point of appearance, to the said premises so occupied by said parties of the first part, of brick or stone, as the party of the second part may elect, and that said dwelling-houses shall be of such class and character as to command genteel and respectable tenants.
    Now, then, know all men by these presents: That the party of the second part, for the consideration hereinafter mentioned, hereby agrees with the parties of the first part to purchase the said lots so lying in the rear of the premises of the parties of the first part, and to erect thereon and upon the lot immediately adjoining said lots on the west, three or more dwelling-houses, covering the entire front of said lots, equal in point of appearance to the premises of the parties of the first part, and of such character and description as to be ineligible for tenement houses or for any trade or occupation likely to be offensive or injurious to the parties of the first part; such dwelling-houses to be constructed of brick or stone, as the party of the second part shall elect, and not to exceed sixty feet in depth.
    In consideration whereof, the parties of the first part, each for himself, and not one for the other, severally agree to pay the party of the second part the sum of two hundred dollars, when said buildings shall be enclosed, the above agreement to bind the heirs of the respective parties.
    
      In witness whereof, the parties to these presents have hereunto interchangeably set their hands and seals the day and year first above written.
    Wm. H. Elphinstone. [l. s.]
    Wk. Henby Anthon. [l. s.]
    James B. Colgate. [l. s.]
    . Robebt C. Voobhies. • [l. s.J
    The defence was, that the plaintiff had not performed the agreement.
    The cause was tried before the Chief Justice and a jury, in November, 1854.
    It was proved on the part of the plaintiff, that he had erected four first-class dwelling-houses on the lots mentioned in the agreement, and apparently covering the entire front of the lots, but it appeared, that on the most westerly of the lots, there was a covered carriage-way extending from the front to the rear of the lot, and that, as the buildings stood, stables might be erected on each lot, in the rear, and have a common entrance and exit by this carriage-way. It was proved, on the part of the defendant, that he and the other signers of the agreement, had given notice to the plaintiff, in writing, that they wordd consider this passage or alley-way to the street, as a breach of his agreement, and would hold him liable to them in damages, and' that the plaintiff had declared, that if the defendant and the other signers should refuse to pay him the stipulated sum, according to their agreement, he would put up a factory or some other building in the rear of the lots, to annoy them.
    The Judge left it to the jury, to determine whether the plaintiff had performed the agreement, and, according to its true meaning, had covered the entire front of the lots.
    The jury found a verdict for the plaintiff, for $200, and interest.
    Upon a case, the defendant moved for a new trial, at Special Term, on the ground that the verdict was contrary to law and evidence, and Mr. Justice Bosworth granted the motion.
    
      H. G. Be Forest, for the plaintiff,
    contended, that the order granting a new trial, ought to be reversed, and a judgment upon the verdict be entered for the plaintiff. The verdict was fully justified by the evidence.
    
      
      J. Anthon, for defendant,
    insisted, that it was immaterial whether the plaintiff had, or had not complied with the letter of his agreement, since he had plainly violated its spirit and intention, and that his threat, to erect a factory or some other building in the rear of the lots, to annoy the defendant and his associates, was conclusive proof that he was conscious, himself, that he had violated his covenant in its actual intention, even while he claimed to have performed it accurately to its letter. He cited, T. Raymond, 469; 6 John. 49; 2 Cow. 981; 22 Wend. 140.
   By the Court. Slosson, J.

In reading the covenant in question, especially in the light thrown upon it by the conversation between the plaintiff and Colgate, one of the parties to it, before the instrument was in fact executed, it is -not difficult to determine what were the motives which induced the parties to enter into the contract, and what was their real intention in so doing. The possible appropriation of the vacant lots to purposes which might prove an annoyance or injury to the premises on Twenty-first street, was the inducement or motive to the arrangement, and the prevention of such an appropriation was the object which the owners of those buildings (the parties to the agreement of the first part) intended to secure. They accordingly provided in their agreement with the plaintiff, that the vacant lots in ques-' tion when purchased by the plaintiff, and also the westerly lot adjoining, then owned by him, should be improved by the erection of buildings thereon, of a class equal, in appearance, to their own, and covering the entire front of the lots, and so constructed as to be ineligible for any trade or occupation likely to be offensive or injurious to their own property.

The instrument does not, in terms, designate any particular occupation as offensive or injurious, except tenement houses, but as that particular is followed by the general clause in question, it is manifest that the parties understood each other, as excluding all modes of occupation which would have the effect to injure the value of the property of the owners on 21st street—the buildings to be erected were not only, within the spirit and true meaning of the agreement, not to be built for such offensive purposes, but they were to be so constructed as to be ineligible” therefor; the instrument thus guarding, as much as possible, against the possibility of the appropriation of the premises to any such use.

It may even be conceded (though I do not so concede) that the covenant is complied with, on the part of the plaintiff, in so far as the stipulation to cover the entire front of the vacant lots is concerned, but this would not answer the whole condition of the Stipulation.

By constructing a carriage-way through the whole depth of the westerly building, leading from the street to the yard, the plaintiff has shown an intention to reserve to himself, and has, in fact, reserved to himself the power and facility of connecting with that building, as a means of its greater enjoyment, some other building, to be constructed in the rear; and that he himself considered the carriage-way as a means by which the premises might be converted into a nuisance, is evident, from the fact, that, when remonstrated with for having constructed it, he threatened, that, if the parties to the agreement did not pay him what they had stipulated, “he would put up a factory in the rear, or something else, to annoy them.” To say, in the face of this, that a building so constructed is “ ineligible for any occupation likely to be offensive or injurious” to the owners on 21st street, would be doing violence to the common sense of the whole agreement.

It was not, alone, the construction of buildings in themselves nuisances, which was intended to be guarded against, but the construction of buildings which could be converted into nuisances, or which could be used for purposes “likely” (in the language of the instrument) “ to be offensive or injurious.”

A covenant is not fulfilled, when its intent and spirit are broken, though complied with in the letter. (Com. Dig. Tit. Cov. E. 2; 2 Cowen, p. 786.)

The- obvious and palpable intention of the plaintiff, in constructing this carriage-way, from which there is no entrance into the dwelling-house, and which can only be entered itself from the outside, at either end, was to connect it, at some future time, with a stable, to be erected in the rear, and as an appurtenance to the dwelling-house. This would be, of itself, “ offensive” to the occupants of the houses in 21st street, and, consequently, injurious” to the property; but the plaintiff would not be restricted to this particular kind of annoyance, since the passage in question would furnish an equally convenient access to a factory, or other offensive establishment. True, he has not yet erected the nuisance, and may never do it, but he has reserved the means to do so, and has himself created the temptation, and manifested the intention to do it, at least to the extent-of erecting a stable in the rear.

Unless for some such object, the carriage-way would be utterly useless. As already said, there is no entrance into the dwelling-house from it; but it forms a clear and open passage, from front to rear, and is only to be entered from the outside of the building, at either end. Its object is too manifest to allow of a doubt, and we think the construction of this carriage-way a clear violation of the contract.

The order granting a new trial is affirmed, with costs.  