
    The Lehigh Valley Railway Company, Appellant, v. American Radiator Company, Respondent.
    First Department,
    May 29, 1931.
    
      Clifton P. Williamson of counsel [H. S. Ogden with him on the brief; Alexander & Green, attorneys], for the appellant.
    
      Daniel Day Walton of counsel [Walton, Bannister & Stitt, attorneys], for the respondent.
   Per Curiam.

Respondent’s title to parcel B,” consisting of land under water adjacent to its upland, parcel A,” was subject to a restrictive covenant contained in the deed by which it acquired title.

In this deed respondent and its grantor, who retained title to the upland and land under water immediately adjoining on the south, agreed as follows: It is expressly covenanted between the grantor and the grantee herein that neither party hereto nor its successors or assigns shall at any time obstruct the slip in the Harlem River in front of and adjacent to the said premises in any manner except that in the usual course of the business of the respective owners of the said premises commercial carriers and floats may be moored by the respective upland owners to their respective bulkheads for loading and unloading. It is expressly understood and agreed, however, that either owner may dredge said slip at any time provided such dredging shall not create a depth of water of more than twelve feet at low tide.”

Under this restriction, this parcel could not be filled in, built upon or used for any purpose other than as an open slip affording access to the Harlem river with incidental wharfage. This restriction is similar in effect to the restrictive covenant litigated, and found of nominal value only, in Matter of City of New York (Upper N. Y. Bay) (No. 1) (219 App. Div. 382; 246 N. Y. 1). The final order before the court, therefore, in awarding $21,175 for parcel B ” is based to that extent on an erroneous theory of value and must be modified.

The final order should be modified by striking therefrom the allowance of $21,175 and substituting an award of one dollar, and as modified affirmed, with costs to the appellant, and the ■ order denying plaintiff’s motion for supplemental report affirmed.

Present — Finch, P. J., McAvoy, O’Malley and Townley, JJ.

Final order modified by striking therefrom the allowance of $21,175 and substituting an award of one dollar, and as so modified affirmed, with costs to the appellant. Order denying plaintiff’s motion for supplemental report affirmed. Settle order on notice.  