
    Anna M. Doyle, Plaintiff, v. John E. Olson Realty Company, Defendant.
    First Department,
    May 7, 1909.
    Real property restrictive covenant — action fop- damages may lie although injunctive relief denied — defect of parties — court, will hot decide abstract question.
    Even though a court of equity will not. enforce restrictive covenants in a", deed where subsequent events have made performance so onerous that it would impose great hardship, with little benefit to the other party, the denial of equitable relief is not a decision that the covenant is inoperative, or that an action at law for damages will not lie.
    Where a restrictive covenant originally affected the property on an entire city block, a court of equity will not enjoin the enforcement of the covenant at the suit of a subsequent owner of a portion of the block where the: Owners of other portions are not parties, as a decree would foreclose their rights without • a heating. •
    Where on a submission of controversy'the facts are not stated, but the court is merely asked to decide whether certain restrictive covenants will prevent the* ' erection and use of a described building, and all parties necessary for the proper determination of the question are not before the court,, it will decline to answer the question propounded.
    Submission of a controversy upon an agreed .statement of facts, pursuant' to. section 1279: of the Code of Civil Procedure.
    
      Morgan J. O'Brien of counsel [ Walter P. Vining with him on the brief], Thomas W. Butts, attorney, for the plaintiff.
    
      Ralph Stout, for the defendant.
   Clarke, J.:

Benjamin Stephens, Amelia A. Willett and. Elizabeth A. Bi;ice owned, and possessed in fee the block of land hounded by Fifth and Sixth avenues and Fifty-second and Fifty-third, streets in the1 city of ÍSÍew York. By deed dated and acknowledged Juné 9, 1871, and duly recorded, they conveyed to William. Sloane by full covenant and warranty deed premises 100 feet by 100.4 feet at the southeast corner of Sixth avenue and Fifty-third street, subject to restrictions: as follows : “And the said party of the second part for himself his heirs,, executors, administrators and assigns doth hereby covenant, promise. and agree to and with the said parties of the first part, their heirs and assigns that whenever he or they shall or may build on or improve said piece or parcel of land or any part thereof he or they shall and will erect and build or cause to be erected and built good and substantial first class buildings of at least four stories in height above basement constructed of brick or stone and the fronts of which shall be of best quality brown stone or Dorchester stone or Philadelphia brick with stone trimmings and the said buildings to front on Sixth Avenue and shall not nor will at any time erect or build or cause or suffer to be erected or built upon the said premises any house of any other description or character to front on Sixth Avenue. And the said party of the second part further covenants and agrees to and with the said parties of the first part that in case he shall erect and build a- building in the rear of said lots to front on Fifty-third street that the said building shall be a first class dwelling house not less than four stories in height above the basement and the front of which shall be of best quality brown stone, or Dorchester stone or Philadelphia brick with stone trimmings and not less than sixteen feet six inches in width in front. And that he will erect or build the said x dwelling house or cause the same to be erected and built in such manner that the exterior face of the front wall thereof shall be on a line parallel with and distant eight feet from the southerly side or line of Fifty-third street aforesaid, and that he will not erect or build or permit to be erected or built any erection, structure or building on that part of the premises hereby conveyed which is bounded northerly in front by the southerly side of Fifty-third street aforesaid and in the rear southerly by a line parallel to such southerly line of Fifty-third street and distant eight feet therefrom except only the necessary steps for entrances and platforms, pedestals and iron or stone railings connected therewith, and an iron or stone fence inclosing the said part of the said premises and the foundations and copings of such fence or railings, but that he shall and will at all times preserve and keep. the last mentioned part of the said premises hereby conveyed an open courtyard unobstructed except as aforesaid. And the said party of the second part for himself, his heirs, executors, administrators and assigns doth hereby further covenant, promise and agree to and with the said parties-of the first part their heirs and assigns that the said party -of the second part,, his heirs and assigns or any of them shall not nor will at any time hereafter erect, build, make, establish or carry on or cause or permit to be erected, built, made, established or carried on in any manner on any part of the- premises hereby conveyed any livery or private stable or any stable of. any kind, coal yard, slaughter house, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or iron factory, or any manufactory of glass, gun powder, starch,' glue, varnish, vibrio!, ink or-turpentine, or any cooper’s or carpenter’s shop, or any establishment for tanning, dressing, preparing or keeping -of skins, hides or leather, or any brewery,- distillery, sugar or other factory or lager beer establishment, theatre, museum, opera hoúsé,, circus, menagerie, or public show, or spectacle or drinking saloon or barroom, dance house or place of amusement of any kind, engine house, t school house, or any- other erection known as or used or employed for purposes known as ‘nuisances’ in the law, or erect or build or commence to- erect .or build any building or edifice for any business with intent to use the same or any part thereof for any of the purposes aforesaid.

“ And'said party of -the second part for himself, his heirs, executors, administrators and assigns doth hereby further covenant, promise and agree to and with the said parties of the first part, their heirs and assigns, that in ease he the said party of the second part, his heirs and assigns or any of them, shall build and erect, or cause to- be built and erected a dwelling house on the rear1 of said lot aforesaid to front on Fifty-third street, that whenever he or they shall convey thesame the deed or conveyance thereof shall contain in addition to the above restriction a clause of restriction against a ‘ meat -shop, cabinetmaker’s shop, bakery, tenement, community house, or any kind of manufactory, trade -or business Whatever ’ and shall contain the following provision ‘ That the building erected thereon shall be restricted to a private- dwelling without a store or stores underneath.’ ” The said deed further provided: “ The -said covenants to be construed and taken as covenants real running with the land.”

The remainder of the block on Sixth avenue was conveyed in 1868, three years prior to the conveyance to plaintiff’s predecessor in title, by the same grantors from- whom the plaintiff derives title, and subject to the same restrictions. William Sloane and wife, by deed dated and acknowledged April 30, 1874, and duly recorded, conveyed to Samuel Simon, Jr., and Abraham Dryfoos, out of the aforesaid parcel of one hundred feet by one hundred and four-tenths feet two parcels designated on the map included in the submission as A, which had a frontage of eighty and four-tenths feet on Sixth avenue and a depth of seventy-four and four-tenths feet on Fifty-third street, and B, immediately adjacent thereto on the south, twenty feet front on Sixth avenue and seventy-four and four-tenths feet in depth, that is to say, the whole Sixth avenue front of the original parcel but only seventy-four and four-tenths feet in depth. By mesne conveyances, subject to the same restrictions set forth in the deed from Stephens and others to Sloane, these two parcels, A and B, came into the possession of the plaintiff herein in 1876.

On June 24, 1908, the plaintiff and the defendant entered into a contract as vendor and vendee of parcel A, being eighty and four-tenths feet on Sixth avenue and seventy-four and four-tenths feet on Fifty-third street. Said contract contained certain -provisions not germane to-this controversy, and concluded as follows: “ The property shall be conveyed by full covenant warrantee deed (short form) with marketable title in fee simple, free from incumbrance, excepting as herein stated.”

Defendant objects to and refuses to take title on the ground that the restrictions hereinbefore recited, contained in the deed .of Benjamin Stephens and others to William Sloane, prevent defendant from erecting on the premises in question a good and substantial building in height equal to not less than four stories above the basement and to be constructed of iron, cement or other fireproof material, the front thereof to face on Sixth avenue, and not to be of brown stone or Dorchester stone or Philadelphia brick with stone trimmings, to.be used as a theater, opera house or place of amusement, with a hotel, bar room or drinking saloon attached thereto or contained therein. In all other respects the plaintiff is ready, able and willing to deliver, and the defendant ready, able and willing to take title.

The statement of facts sets up that the use to which the property in question is put and the character of the neighborhood have changed since the creation of the restrictions; that Sixth avenue from Fifty-second tó Fifty-third, streets and also north and south thereof for many Mocks on both sides has been and is now used exclusively for business purposes Or for business andi Ordinary tenements ; that there now are numerous liquor stores in Sixth avenue near and north and south, of the point in question, there being one at the, northeasterly corner of Fifty-second street and Sixth avenue, one at the southwesterly corner of Fifty-third street and Sixth avenue, and both have been maintained there for rüany years; . On the block on Fifty-third street west of Sixth avenue there are large and small business places of'mány kinds ; the elevated road passes and turns westerly through'Fifty-third street, and there is a large tower maintained in Fifty-third street adjacent to the front of the premises. The question submitted for decision is: Are the restrictive covenants contained in the deed dated June 9, 1871, made by Stephens and others .tó Sloané now operative, and do they prévent the erection and use of a theater, opera house or place of' amusement with a hotel,, drinking saloon- or bar room attached thereti)- or contained therein ?

If the question be answered in the negative, the plaintiff prays judgment against the defendant directing it to take title pursuant to the terms of the contract -of sale. If answered! in the affirmative, the defendant prays judgment against the plaintiff relieving It from its contract of purchase.

-It will be noted that the question■ submitted is peculiar-. The . contract provides that the property shall be conveyed! with marketable title in fee simplfe, free from incumbrance.-■' The, question stib- ' mitted is not that suggested by the contract — is the title marketable — but contains two propositions: First, are the restrictive covenants now operative? And, second, do they prevent the erection and use of a theater, opera house or place of amusement with a hotel, drinking saloon or bar room attached thereto’ or contained - therein ? - And by the submission judgment is to be entered for plaintiff or defendant: as the court may answer tins whole question, containing the two propositions, in the affirmative or the negative. The parties have -not, therefore, submitted the facts and asked for such judgment thereof) as the law requires, but have ¡presented- an ' issue made, by themselves.

In Missouri, K. & T. R. Co. v. Union Trust Co. (156 N. Y. 592), Vann, J., said: “ That learned court [the General Term] had jurisdiction to decide, and we have jurisdiction to review, only the questions that were actually submitted and which arose out of the facts stated in the record of submission.”

The question at bar was obviously framed in the light of the decisions holding that a court of equity will not enforce restrictive covenants if subsequent events have made performance by the' defendant so onerous that enforcement thereof would impose great hardship to liini and cause little or no benefit to the plaintiff. (Trustees of Columbia College v. Thacher, 87 N. Y. 311.)

Rone of the cases, however, declare the covenant inoperative, but, while denying equitable relief, support an action at law for damages for the breach. Thus, in the Thaoher Case (supra) : “ In the case before us the plaintiffs rely upon no circumstance of equity, but put their claim to relief upon the covenant and the violation of its conditions by the defendant. They have established by their complaint and proof a clear legal cause of action. If damages have been sustained, they must in any proper action be allowed.”

In McClure v. Leaycraft (183 N. Y. 36) the court said: It cannot set aside a binding contract, but when the effect would be inequitable owing to facts arising after the date of the agreement and not within the contemplation of the parties at the time it was made, it refuses to enforce the contract and remands the party complaining to his remedy at law through the recovery of damages.”

So that in any event the first part of the submitted question must be answered in the affirmative because the court, having no power .to set aside a binding contract, an action for damages for the breach thereof exists, even if an injunction to enforce said contract would not be granted. The covenants, therefore, are still operative.

Do they prevent the erection and use ” of the described buildings ? Those words are ambiguous. Does the question mean that the erection of'such buildings would be prohibited by the mandate of a court of equity, or does it mean that the covenants cannot be breached without subjecting the violator thereof to an action for damages ?

We cannot say upon this submission whether a court of equity would or would not issue an injunction. It must be borne in mind that the original grantors owned the whole block'between Fifth and Sixth avenues, Fifty-second and Fifty-third streets, and that they had in mind the protection of the property upon Fifty-third street by the restrictive covenants as to the land fronting on Sixth avenue, and that, while the facts submitted deal with certain changes which are alleged to have taken place, in Sixth avenue, they are silent as to the present condition of Fifty-third street east of' Sixth avenue. In fact a portioq of the lot conveyed in 1871, out of which the premises in suit Were carved, to wit, a twenty-fiveffoot lot fronting on Fifty-third street immediately adjacent to the premises' in controversy to the . east, is ' not represented in the matter at bar. Therefore, there are not presented to the court the facts and circumstances affecting that property, or the remaining property on Fifty-third street, which might be of controlling influence upon a court of equity in passing upon the question of whether or not an injunction should issue to enforce these covenants! The court is confined to the facts agreed upon and can make no inferences or in any way depart from or go .beyond the statement presented. (Clark v. Wise, 46 N. Y. 612; Fearing v. Irwin, 55 id. 486; Marx v. Brogan, 188 id. 431.) The court will not decide questions in which parties not before the court ara interested, the effect of which would be to foreclose their rights Without a hearing, even though it might lead to' the settlement of .a particular controversy. (Wood v. Squires, 60 N. Y. 191;. Union-National Bank v. Kupper, 63 id. 617; Kennedy v. Mayor, 79 id. 361; Dickinson v. Dickey, 76 id. 602; Kelley v. Hogan, 69 App. Div. 251; Schreyer v. Arendt, 83 id. 335; Davin v. Davin, 105 id. 580.)

The jiarties to .the controversy might have submitted a clear cut question to the court—-was the title marketable? This they carefully refrained from doing, but in lieu thereof attempted to.procure an opinion from the court, as we may infer from the peculiar phraseology of the question, as to whether a court of equity would prohibit the erection of a building in violation of the covenants. Becauseneither the facts nor the parties necessary for the proper determination of that question are before the court, it declines to answer the question propounded. This proceeding, therefore, is dismissed.

Patterson, P.J., Ingraham, McLaughlin and Loughlin, JJ., concurred.

’ Proceeding dismissed. Settle order on. notice.  