
    John E. Simons, Plaintiff, v. Mutual Construction Company, Defendant.
    First Department,
    June 11, 1909.
    Beal property—restrictive covenants construed — when one not entitled to use premises for bakery.
    Where lands are subject to a restrictive covenant running with the land prohibiting the carrying on of certain trades and the erection of certain buildings, including a “ bakery” or the carrying on of any business which may in-any wise be “ dangerous, noxious or offensive to the neighboring inhabitants,” an owner will be enjoined from installing two bake ovens projecting from the rear of the house into, the yard and intended to be used in connection with a bakery.
    
      Moreover, the covenant -taken as a whole sliow.s'an intention, to confine the use , of the lands to residential purposes, and the use of such bake o-vens is a violation of the covenant prohibiting the carrying on of trades offensive to neighboring inhabitants.
    Houghton, J., dissented, with opinion.
    Submission, of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Samuel Wechsler, for the plaintiff.
    -Milton Mayer, for .the defendant.
   McLaughlin, J.:

This is-a-submission of -a controversy pursuant to the provisions of the Code of Civil Procedure -(§§ 1279-1281). The parties are the Owners of adjoining lots -situate on -the -southerly side -of the Southern boulevard in the city of New York.. They derived their titles -by mesne -conveyances from the executors of the last -will 'and testament -of Philip Pater., In 1868 the executors con veyed the lots in question with other lands, to one Arnold, and this conveyance contained the following covenant: The party of the second, part hereby covenants with the -party of the. first part that there shall not be erected, made or carried on upon any part of said premises any livery stable, coal yard, slaughter house, meat shop-tallow chandlery, -steam engine, smith-shop, forge, furnace, brass foundry, nail or other iron factory, or any manufactory of: glass, gun powder, starch, glue, varnish, vitriol^ ink or turpentine, or any cooper’s, carpenter’s or cabinet-maker’s shop or any establishment for tanning, dressing, preparing or keeping, skins, hides or leather, or any brewery, distillery, sugar or other bakery, lager beer establishment, theatre, opera bouse, circus, menagerie, or public show or exhibition of animals, or other public show or spectacle, or any-other trade, manufactory, business or calling which may in any wise be dangerous, noxious or offensive to the neighboring inhabitants.That this covenant shall run with the land and bii-¿d the heirs and assigns of said party o-f the second part, owners of said land.’’ . The defendant has filed w-itli the -building department plans and'specifications for the erection of two buildings, on its property. These' buildings are to be five stories in height and to accommodate four families on each floor and are what is commonly known as tenement houses. One of the buildings is to contain two stores on a level with the street, one to be devoted to the sale of bread, cakes and confectionery. In the cellar, directly underneath this store, there is to be provided a storeroom for the use of the tenants in the house, a boiler room, and a bakery for the baking of bread and cakes. The bakery is to occupy a space twenty-five by thirty-five feet and nine feet high. It is to contain two bake ovens, each measuring in the clear eleven feet four inches by thirteen feet four inches and projecting from the rear house line into the yard of the most westerly of the two houses. The ovens are to be independent of the rest of the building, and to have no connection with it except in the manner stated.

The question presented is whether the erection, maintenance and use of these ovens will constitute a violation of the covenant above quoted. If so, then judgment is to be given for the plaintiff restraining the defendant from erecting such ovens or ovens of like character or description ; if not, then judgment is to be given for the defendant, dismissing the action.

I am of the opinion the plaintiff is entitled to judgment-. First, if effect be given to the words used, shall not be erected, made or carried on upon any part of said premises any * * * bakery,” then the covenant expressly prohibits the erection, maintenance and use of a bakery. Second, it seems to me it was clearly the intention of the parties (and this really is the test to be applied to a covenant of this character — Kitching v. Brown, 180 N. Y. 414) to restrict the use of the premises in such a way that the same would not “ be dangerous, noxious or-offensive” to persons occupying the land conveyed for residential purposes. That it was not thus occupied at the time of the conveyance is of no importance because the covenant looked to the future, and it was then to be as effective as when made. Otherwise, the words This covenant shall run with the land and bind the heirs and assigns of said party of the second part” would not have been used. When the whole covenant is considered it seems clear it was the intention of the parties to confine the use of the land conveyed to dwelling purposes or business which would not be noxious or offensive to those who occupied it in that way. It certainly cannot be said that the use of two bake ovens of the size located and to be used as thetwo in question are intended to be would not be noxious or offensive to persons using other portions of the property — including that adjoining — for residential purposes. To some persons the odors arising from the use of these ovens might be as offensive or annoying as odors arising from the carrying on of many of the other kinds of business prohibited.

If these views be correct,- then the plaintiff is entitled to a judgment under the stipulation restraining the defendant from erecting the bake ovens referred to in the submission or ovens of á like character or description.

It follows that the plaintiff is entitled to judgment as prayed for in the stipulation.

Ingraham, Clarke and Scott, JJ., concurred; Houghton, J., dissented. . .

Houghton, J. (dissenting):

The stipulated facts do not show the size of the tract of land conveyed subject to the covenant in controversy, except that it-was a “ large tract,” and consisted of a farm then in the county of West Chester, now in the'borough of the Bronx, in the city of Hew York, and that it had thereon no buildings other than farm buildings, and . that it was not plotted with streets and lots. The deed containing the covenant was made -in 1865, and since that time, streets have been laid out and the. property has been extensively built upon,. One of these streets is known as the Southern boulevard, upon which these parties own contiguous lots. It is stipulated by the record that the Southern boulevard is the principal business thoroughfare of the borough of the Bronx east of Third and Westchester avenues, and that it is used principally for business purposes and' has a trolley-car line, and is built up with apartment and tenement houses with and without stores. The record shows that from the time the covenant was made to the present the character of the property has changed from farm land to city lots thickly built upon and thickly populated. The covenant prohibits the use of the land for almost everything that could be enumerated, except dwelling houses, including meat shops and bakeries.. Both meat shops and bakeries are necessities in large cities. Presumably the covenant was made for the benefit of the land. If these necessities cannot be provided for within easy reach of the inhabitants, the land will be injured instead of benefited. It seems to me, therefore, that the covenant as to the maintenance of a bake shop should be held to give way to the changed condition under the theory enunciated in Trustees of Columbia College v. Thacker (87 N. Y. 311) and kindred cases.

Assuming that there is no ambiguity in the covenant as to a “ sugar or other bakery,” and that it includes an ordinary bread and cake bakery such as the defendant proposes to install and operate, and conceding that its maintenance would cause some annoyance and discomfort to the plaintiff, still ! think judgment should be directed for the defendant and I so vote.

Judgment ordered for plaintiff. Settle order on notice.  