
    Simon Doctor, Resp't, v. William A. Darling, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 17, 1893.)
    
    1. Deed—Covenants—Interest.
    In an action to recover damages for breach of a covenant against incumbrances interest is not recoverable, as the damages are unliquidated.
    
      2. Same—Restrictions as to use oe premises.
    Where limitations upon the right to use land diminish the value of such land, they are incumbrances within the meaning of a covenant against incumbrances.
    
      8. Same—Evidence.
    Evidence to show that the grantee had knowledge of the restrictions when she took her deed, and that the use of property in the neighborhood had so changed that a court would not restrain the owner of the lot from using it for the prohibited purpose, is properly excluded when offered only in defense of the action. The fact that the limitations could not, or would not, be enforced by injunction is no defense to an action for damages if any were occasioned by the restrictions.
    
      4. Same.
    Where the plaintiff sold the premises subject to the restrictions for the purpose of fixing the damages, evidence of the amount expended by her in repairing the building, if such repairs really improved the value of the property, is admissible for the consideration of the jury in determining what the property was worth unrestricted and restricted. (Follett, J., dissents.)
    Appeal from judgment entered on verdict directed by the court, except as to the amount of damages, and from order denying motion made on the minutes for a new trial.
    January 13, 1874, a lot seventy feet wide, east and west, and 100 feet, five inches long, north and south, and situate on the north side of East Sixty-third street, was conveyed in fee, by a full covenant warranty deed, duly recorded January 1, 1874, to William Hyams, subject to the following restrictions: “And the said • party of the second part, for himself, his heirs, executors, administrators or assigns, or any of them, shall not, nor will, -erect or build, or cause or suffer to be erected or built, upon the lot of land hereby granted, or upon any part thereof, any building or structure of any kind, description or character whatever, fences excepted, other than good and substantial dwelling houses, at least three stories in height above the basement, constructed of brick or stone, having roofs covered with slate or metal, which said houses shall be erected or built in such manner as to cover the whole width of the said lot of land, leaving no alleys or passages communicating from the street to the yards, other than the ordinary halls or entries in such houses contained, and shall have the exterior face of the front walls constructed of stone, built upon a line parallel with and distant five feet from the northerly side or line of Sixty-third street, and measuring at least forty feet from the established grade of said Sixty-third street to the upper line or top of the cornice or eavestrough. And that the said party of the second part, his heirs, executors, administrators or assigns, shall not use or suffer the said dwelling house to be used or altered so as to be used for any tenement, community house, stable, theater, or other place of public amusement, or any manufactory, trade or business whatsoever, or for any other purpose which may be obnoxious or offensive to the neighboring inhabitants, and will keep the hereby granted lot of land, during such time as there shall be no building erected, or being or prepared for or in process of erection thereon, free and unobstructed, except by necessary fences.”
    January 31, 1874, Hyams conveyed the lot, by a full covenant warranty deed, duly recorded February 3, 1874, to Thomas Mc-Manus, subject to the same restrictions. May 31, William A. Darling, defendant, acquired title to the lot through several mesne conveyances, all of which were duly recorded, but no reference was made to said restrictions in any of them. February 15,1886, Darling conveyed the lot to Rebecca Childs, in consideration of $52,000, by a warranty deed, which contained a covenant that the premises were unincumbered, except certain mortgages which were specified. September 21, 1888, Mrs. Childs contracted to sell the premises to Herman Wronkow for $52,500, and to convey them free from all incumbrances, except certain mortgages which were specified.
    Upon an examination of the records, Wronkow discovered the restrictions contained in the deed to Hyams, and refused to perform his contract. The premises were sold through brokers, whom Mrs. Childs paid $350 for their services. Wronkow paid $175 for searching the title, which she paid to him. On the resale hereinafter mentioned, she paid to the brokers $350. In February, 1889, Mrs. Childs expended $550 in altering and extending the plumbing on the premises pursuant- to an order of the board of health. May 31, 1889, Mrs. Childs, in consideration of $50,000, conveyed the premises to Griffin Tompkins, subject to the covenants contained in the deed to Hyams ; and October 29, 1889, she assigned to the plaintiff all causes of action against Darling arising out of the breach of the covenant against incumbrances. November 4, 1889, this action was brought to recover the damages for the breach of the covenant, which were alleged to be $2,500; the difference between the price agreed to be paid by Wronkow and the price paid by Tompkins, the sum paid to Wronkow for the expense of searching the title, and the amount paid to brokers for making the two sales. On the trial the plaintiff was allowed to prove, without objection that it was not claimed in the complaint, the payment of $550 for extending and repairing the plumbing and sewers. The defendant, in his answer, alleged that Mrs. Childs, before she purchased the property, was informed of the restrictions contained in the deed to Hyams, and that, by the changed situation of the neighborhood in which the property was situated, the restrictions had become inoperative and waived by the owners of property in the vicinity. On the trial the court ruled that the plaintiff was not entitled to recover the sums paid the brokers for effecting the sales, or the sum paid for searching the title, but ruled that the measure of damages was the difference between the value of the premises, unrestricted (which could not be deemed more than $53,000, the price she paid Darling), and restricted as they were, and $550, the expenses of repairing the plumbing, if those repairs were fairly done and really improved the property to the extent of the sum paid therefor. The jury rendered a verdict for $3,050, with $570 interest. The $3,050 is equal to the difference between the price which Wronkow agreed to pay, and the sum for which she subsequently sold the premises to Griffin Tompkins, and $550, the sum paid for plumbing.
    
      Wakeman & Campbell (A. J. Dittenhoefer and J. Albert Englehart, of counsel), for app'lt; Sol. Kohn, for resp't
   Follett, J.

The jury having found that the limitations upon the right to use contained to Hyams diminished its value, the restrictions are incumbrances, within the meaning of the covenant against incumbrances. Prescott v. Trueman, 4 Mass., 627-629; Wetmore v. Bruce, 118 N. Y., 319; 28 St. Rep., 687; Trustees v. Lynch, 70 N. Y., 440; Rawle Cov. (4th ed.), 95; 2 Wash b. Real Prop., 639 (4th ed.), 460.

On the trial the defendant offered to show by oral evidence that Mrs. Childs knew of the limitations upon the right to use the premises when she took her deed, which, under the plaintiff’s objection was refused. This was not error. Huyck v. Andrews, 113 N. Y., 81-85; 21 St. Rep., 924. Nor was it error to refuse to permit the defendant to show that the use to which property was put in the neighborhood had so changed that a court of equity would not restrain the owner of the lot from using it for the prohibited purposes. The fact that the limitations could or might not be enforced by an injunction is no defense to an action at law for the recovery of the damages, if any were occasioned by the restrictions. This evidence was not offered as bearing upon the question of the amount of damages recoverable in the action, but as a defense to it. Besides, great liberality was shown both sides in the admission of evidence upon the question as to how much the value of the property was diminished by the restrictions.

The plaintiff recovered $550 expended by Mrs. Childs for plumbing and sewers between the date of the rescission of the executory contract of sale with Wronkow, and the date of the conveyance to Tompkins. The evidence of these expenditures was sufficiently objected to by the defendant, but the objection was overruled, and an exception taken, which was error. Upon a breach of a covenant of seisin or quiet enjoyment the value or expense of improvements made by the evicted grantee, cannot be recovered as a part of his damages. Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 id., 50; Murray v. Ballou, 1 Johns. Ch., 566-577; Dimmick v. Lockwood, 10 Wend., 142; Kinney v. Watts, 14 id., 38; Peters v. McKeon, 4 Denio, 546-550; Willson v. Willson, 25 N. H., 229; Rawle Cov. (4th ed.), 235 et seq.; 3 Sedg. Dam. (8th ed.), § 958; Hayne Dam. (2d ed.), 147.

The cost or value of improvements put upon the property not being recoverable in case the entire estate is lost by the failure of the principal covenants, it is difficult to see on what principle their value or cost can be sustained when the worth of the estate is simply diminished through the failure of a subordinate covenant. In some cases the same measure of damages may be recovered upon a breach of a covenant against incumbrance as upon a breach of a covenant of seisin ; for example, when the incumbrance is foreclosed, and the grantee is evicted. The measure of damages caused by an incumbrance cannot be greater when the grantee is not evicted than it is in the case of an eviction. There may be cases- in which the value or expense of improvements may be recoverable, as in a case of a covenant given with special reference to contemplated improvements by the grantee, but that is not this case. ' It is apparent, we think, from the instructions of the court, and the verdict of the jury, that the item for plumbing was included as a part of the damages recovered. Upon this question the court said : “ You will remember that between the time when Wronkow withdrew from his first contract, and the time when he again came forward, Mrs. Childs put certain repairs upon the property, plumbing, etc., for which she paid $550. It is quite immaterial, in the aspect of the case which I am now considering, whether these repairs were done by order of the board of health, or merely because Mrs. Childs wished to improve her property. The fact is that the property was improved to the extent of the $550 of repairs put upon it, and the plaintiff’s claim is that that sum should be added, in your minds, to the $52,000 which Wronkow was to pay for the property before the repairs were made. If the repairs were fairly done, and really improved the property to the extent of $550, the plaintiff thus claims that the property, treated as free from this restriction, was worth $52,500, which Wronkow was willing to pay, plus the $550 subsequently put upon it, viz., $53,050, and that when Mrs. Childs was only able to sell it, as restricted, after the repairs had been put upon it, for $50,000, there was a depreciation, caused by the restriction, of $3,050. That is the view which the plaintiff takes of it, and the view that he seeks to impress upon you.”

The jury rendered a verdict for $3,050, showing, we think, that the $550 were added to the $52,500, and the price which the premises were sold for, $50,000, deducted. To this sum interest to the amount of $570 was added, which made up the verdict of $3,620. It is true that no exception was taken by the defendant to this part of the charge, but it shows the use which the jury was permitted to make of the evidence of the amount paid for plumbing, and that the error in admitting this evidence affected the verdict. The court erred in permitting a recovery for this item.

When a grantee has been evicted from the subject of the grant, and becomes entitled to recover as damages the consideration of the conveyance, he is entitled to interest as compensation for the mesne profits for six years, which he is liable to pay to the true owner. Staats v. Ten Eyck, 3 Caines, 111-115; Pitcher v. Livingston, 4 Johns., 1-13; Caulkins v. Harris, 9 id., 324; Bennet v. Jenkins, 13 id., 50; Kinney v. Watts, 14 Wend,, 38-40; Peters v. McKeon, 4 Denio, 546-549; Rawle, Cov. (4th ed.), 600; 3 Sedg. Dam. (8th ed.), § 963. If the incumbrance is security for a debt less in amount than the consideration paid for the land, and the grantee is compelled to pay it to relieve his property, he may recover the amount with interest. Pitcher v. Livingston, 4 Johns., 1-10; Dimmick v. Lockwood, 10 Wend., 142-151. But we find no case holding that interest may be recovered on damages arising from a breach of a covenant against incumbrances when the incumbrance is permanent in its nature; for in such a case the measure of the damages is the difference of the value of the premises with and without the incumbrance, and are necessarily unliquidated. Interest upon such damages is not allowable in actions on contracts. No question was raised as to whether the difference in value should be ascertained as of the date of the conveyance by Darling to Mrs. Ohilds, the covenant then being broken, or as of the date of the conveyance by Mrs. Ohilds to Griffin Tompkins, and the question need not be considered. The allowance of interest was error.

Fortunately, this case was so clearly tried, and the different items recovered so distinctly stated, that we are not required to reverse the judgment, and put the parties to the expense, and the •courts to the trouble, of a new trial.

■ The judgment should be modified by striking therefrom the item of $550 for improvements, and $570 allowed for interest, and as modified affirmed, without costs in the general term to either party.

Van Brunt, P. J.

While concurring generallyin the of Mr. Justice Follett herein, I do not accede to the proposition that it was error to admit the evidence as to the amount expended on the plumbing of the premises, It is true that the plaintiff could not recover for the amount thus expended, but as evidence was offered to show what the premises brought when sold unrestricted, and what they subsequently brought when sold restricted, for the purpose of giving some guide as to the damage caused by the restriction, the admissibility of which evidence is not objected to, if there was any change in the condition of the premises between the time of the two sales, this certainly affected the value of the evidence thus offered. If they had been injured by the elements, the defendant could certainly have shown that; and, therefore, it seems to me, if they had been rendered more valuable by the necessary repairs, the plaintiff might show that, as bearing upon the value of the evidence of the sale subsequent to the repairs. This was the view in which the court submitted the question to the jury. They were instructed that, if the repairs really improved the property to the amount expended for them, ■they might take this into consideration, in determining what the property was worth unrestricted and restricted. It is undoubtedly true that upon a breach of seisin or quiet enjoyment the value or of improvements made the evicted cannot be proved as part of the damages, but in the case at bar there was no such recovery. The question under investigation was the damage the restriction caused to the grantee. There was no total eviction, but only a partial restriction upon full enjoyment. The amount of this damage was a question between grantor and grantee, and was measured by the difference in value unrestricted and restricted. Evidence being given of a sale restricted, what had been done with and to the property subsequent to the original sale unrestricted was certainly competent to show what weight should be given by the jury to this evidence of the restricted sale. I am of the opinion, therefore, that no error was committed in the admission of this evidence. As shown by Mr. Justice Follett, the allowance of interest was error. I think that the judgment should be reduced by amount of interest, $570, and, as modified affirmed, without costs.

O’Brien, J., concurs in opinion of Van Brunt, P. J.  