
    John J. Hurley and Aquila M. Hurley, Appellants, v. Henry Brown, Respondent.
    
      Covenant by a grantee to build a “ two-stm'y dwelling house" —when broken — right of a subsequent grantee, acquiring title after its breach, to build a store building — effect of such a covenant.
    
    A deed of a suburban lot, executed by a grantor who owned several thousand of such lots, contained a covenant by the grantee, one Mary West, not to use the premises for certain business purposes, “and that no part of said premises-shall be so us,ed or occupied as injuriously to affect the use, occupation or value of the adjoining or adjacent premises for residence purposes, or the neighborhood wherein said premises are situated; that the party of the second part-will erect and build on said land a substantial two-story dwelling house, to-cost not less than $3,500; that no building whatsoever shall be erected on said land within twenty feet of the southeasterly side of Twelfth avenue; that no-stable, carriage house or shed shall be erected on said land within sixty feet of the southeasterly side of Twelfth avenue; that any breach or threatened breach-of this covenant may be enjoined upon the application of the party of the first-part, its successors or assigns; that the party of the first part, or its successors, ohall also have the right to recover the sum of $1,000 as liquidated damages for every breach of this covenant from the person committing such breach; and that these covenants are to be taken and construed as running with the-land.”
    West did not build upon the lot, and some ten years after the conveyance to her the premises were conveyed to one Brown, who proposed to erect thereon a three-story building, with stores on the first floor and flats or apartments above.
    In an action by the grantee of another one of the suburban lots, claiming title under a deed from the common grantor, containing a similar covenant, to= restrain Brown from erecting the contemplated building, it was
    
      Held, that no time being prescribed in which the house was to be built, West was bound to build it witlíin a reasonable time;
    That, assuming the covenant to run with the land, as West was in default on her covenant to build on the lot “a substantial two-story dwelling house to cost not loas than $3,500” long before the conveyance to Brown, the latter was not liable, for its breach;
    That as West might, after performing such covenant, alter the structure or erect a new building and use it for any purpose not forbidden by the other provisions of her agreement, Brown, not beingliable for the prior breach, might properly erect his contemplated building;
    That the agreement did not forbid the use of the property for any business purposes or for a flat house.
    
      Qumre, whether the covenant to erect the two-story dwelling .house ran with the land.
    
      Appeal by the plaintiffs, John J. Hurley and another, from an •order of the Supreme Court, made at the Kings County Special 'Term and entered in the office of the clerk of the county of Kings •on the 29th day of July, 1899, denying their motion for an injunction pendente lite.
    
    
      S. S. Whitehouse, for the appellants.
    
      Horace Graves, for the respondent.
   •Cullen, J. :

This action is brought to restrain the defendant fi'orn erecting on •certain lots on Twelfth avenue in the borough of Brooklyn any buildings to be used for stores or other purposes, or for the use of more than one family, and from building within twenty feet of the .avenue. The action is founded on a covenant in a deed made by the .West Brooklyn Improvement Company to one Mary West, on August 29, 1889, as follows: “And it is covenanted by the party of tire second part, and the heirs and assigns of the party of the second part, with the party of the first part, its successor's and assigns, as ■follows : That no blacksmith or carpenter shop, no manufactory of .any kind, no livery stable, pigpen, bone boiling, or similar establishment, shall be erected or permitted on said.land ; that no spirituous •or malt liquor shall be made or sold or kept for sale upon said premises ; that no nuisance or offensive, noisy or illegal trade, calling of transaction shall be done, suffered or permitted thereon, and that no part of said premises shall be so used or occupied as injuriously- to .■affect the use, occupation or value of the adjoining or adjacent premises for residence purposes or the neighborhood wherein said premises are situated ; that the. party of the second part will erect and build on said land a substantial two-story dwelling house to-cost not less than $2,500; that no building whatsoever shall be erected -on said land within twenty feet of the southeasterly side of Twelfth .avenue; that no stable, carriage house or shed shall be erected on .-said land within sixty feet of the southeasterly side of Twelfth .avenue; that any breach or threatened breach of this covenant máy be enjoined upon the application of the party of the first part, its .successors or assigns; that the party of the first part, or-its suc•cessors, shall also have the right to recover the-su-rn-of $1,00(3 as liquidated damages for every breach of this covenant from the person committing such breach; and that these covenants are to be taken and construed as running with the land.” December, 1898, May West, a grantee of Mary West, conveyed the premises to the defendant. The West Brooklyn Improvement Company, at the time of the conveyance to West, was the owner of a tract of several thousand lots. The plaintiff derived title from the improvement company by a deed. containing a similar covenant. The defendant purposes erecting on bis premises a three-story building, to cost over $20,000, with stores on the first floor and flats or apartments above; and the question is whether the erection of such a building • violates the covenant. It will be observed that the covenant does not in terms forbid the erection of stores or the use of the premises for business or tenement purposes. The grantee covenanted to “ erect and build on said land a substantial two-story dwelling house, to cost not less than $2,500,” but this cannot be construed as a covenant that -noth- ■ ing but a dwelling house should be maintained on the land, for if SO it would equally forhid the erection of any dwelling house of more than two stories. Certainly this was not the intent of the parties. The grantor was the owner of a large tract of land which it was endeavoring to market in suburban lots. The erection of ■ buildings and improvements on the property it might sell would enhance the value of the rest and render it more marketable. For this reason it required its grantees to agree to improve the property by the erection of a tWo-story dwelling house costing not less than $2,500. But there could have been no intention to restrict the height of the houses; on the contrary, the higher the buildings and the more expensive they might be, the greater would be the advantage to adjacent property. Still even this covenant, if literally cotistrued, would not limit the use of the property nor the subsequent erection of buildings of a different character. If the grantee erected a two-story dwelling house he would perform his covenant, and thereafter might alter the structure, erect a new building or use it for any purpose not forbidden by the other provisions of his agreement. We doubt whether this covenant to erect a building ran with the land so 'as to be enforcible against a subsequent grantee. But if we assume that it ran with the land, still it cannot be enforced against this defendant. No time being ■ prescribed in,. which to build the house, the covenantor was bound to build it within a reasonable time. Ten years elapsed between the conveyance to West and the conveyance from West to the defendant. Certainly long before the second conveyance West was in default and there was a breach of the covenant. An assignee or grantee is not liable for breaches occurring prior to his acquisition of title. In Churchwardens of St. Saviour's v. Smith (3 Burr. 1271), the lessee had covenanted to pull down, within seven years, certain houses on the demised premises and erect new ones thereon. The defendant was the assignee of the lease after the expiration of the seven years. It was held that he was not liable for a breach of the covenant previously committed. (See, also, Tillotson v. Boyd, 4 Sandf. 516.) The covenant in this case is markedly different from that in Sonn v. Heilberg (38 App. Div. 515). There the covenant was negative in its terms, not to erect at any time buildings other than of a prescribed character. It was plainly intended to create a continuous easement in the lands conveyed in favor of the grantor and other grantees from him. In the present case, while the covenant both commences and terminates with terms of restriction, the provision as to the erection of a dwelling house is interjected in the form of a covenant to do an affirmative act. Some effect must be given to this change of phraseology. If, as contended by the appellant, all that was meant by this provision was that nothing but a dwelling house to cost not less than $2,500 should be at any time erected on the premises, it was very easy to have said so. It is provided that no blacksmith or carpenter shop or manufactory of any kind, etc., shall be erected or permitted on the land. If it was intended that no shop or store of any character should be allowed, why was it not so written ? The very fact that certain business uses are expressly forbidden indicates that other business uses of a different character are permitted. The rule is that these covenants must be strictly construed against the grantors. (Duryea v. The Mayor, 62 N. Y. 592; Blackman v. Striker, 142 id. 555.) To interpret this covenant as forbidding the use of the property for any business purposes would be an unwarrantable extension of its terms. In no event would the erection of a flat or tenement house be a violation of the covenant against erecting anything but dwelling houses. (Sonn v. Heilberg, supra.)

If after the buildings are erected the defendant permits their use to affect injuriously the use, occupation or value of adjacent -premises in violation of the covenant, that may be enjoined; but this provision of the covenant goes only to the use of the buildings or structures and not to the right of the defendant to erect them. We cannot say, as a matter of law, that the presence of shops and flats will necessarily depreciate or injure neighboring property.

There can be no question as to the efficacy of the restriction against building within twenty feet of the line . of the avenue. The defendant denies that he has any intention to build within this limit, and we assume it was on this ground that the injunction was entirely dissolved. If at any time hereafter he threatens to violate the covenant in this respect, the plaintiff may apply ex parte for an injunction.

The order appealed from should be affirmed, with ten dollars costs and disbursements, but with leave to the plaintiff at any time to apply for an order restraining the defendant from building within twenty feet of Twelfth avenue.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  