
    (67 Hun, 343.)
    KOUNTZE et al. v. HELMUTH.
    (Supreme Court, General Term, First Department.
    February 17, 1893.)
    1. Vendor and Purchaser—Incumbrance—What Constitutes.
    A written agreement between the owners of city lots as tenants in common that they would erect only buildings of a certain kind on the lots; that in all future sales, leases, or other disposition of the lots the purchasers, lessees, or occupants shall be required to come under such restrictions, and the same shall run with the land; and that any person aggrieved by any violation thereof may apply for relief by injunction or otherwise,—constitutes an incumbrance on such lots.
    2. Same.
    An agreement between the several owners of a block in a city that the front of any houses erected on lots therein shall be set back a certain distance from the street; that the space thus left in front shall be forever kept open for a court yard; and that this covenant shall run with the land, and be binding on all future owners,—constitutes an incumbrance on such lots.
    3. Same—Change in Character oe Neighborhood.
    In an action- for damages for breach of contract to convey one of such lots by perfect title, evidence offered by defendant to show a change in the character of the neighborhood in which it is located since the execution of such agreements, is properly excluded, since such change constitutes no defense in such action, though it might induce a court of equity to refuse to specifically enforce such restrictive covenants.
    4. Same—Waiver oe Deeects.
    In such action it appeared that the time fixed for executing the conveyance was once extended six days at defendant’s request; that the examination of the title was completed eleven days prior to the time last fixed; that two days before such completion the vendee agreed to sell to defendant’s husband certain bookcases attached to the premises; that the next day mechanics, under the latter’s direction, began taking them down; and that on the morning of the next day the vendee, by letter to defendant, “suggested and advised” that, as the examination of the title had not been fully completed, and title found satisfactory, they should defer moving the bookcases. Held, that the vendee did not waive the defects in the title.
    5. Same—Counterclaim.
    In such action defendant cannot maintain a counterclaim on the ground that the vendee took possession of the premises of the freehold, and sold certain portions thereof, and that by reason of his failure to perform the contract defendant was put to loss in removing her property from the premises, and lost the rental value thereof, since his objections to the title were valid, and there is no basis for such counterclaim.
    Exceptions from circuit court, New York county.
    Action by Augustus Kountze against Fannie Ida Helmuth to recover damages for breach of a written contract to convey certain real estate. Subsequent to the trial, plaintiff died, and the action was revived in the name of Herman Kountze, Luther Kountze, and Charles Kountze, as his executors. There was a verdict for plaintiff by direction of the court, and exceptions were ordered to be heard, in the first instance, at the general term.
    Exceptions overruled.
    The questions referred to in the opinion, asked Alfred C. Pette as a witness on behalf of defendant, were as follows:
    “Question. State how the different pieces of property are occupied, beginning on Forty-Second street. ” “Q. This agreement, it appears, covers one lot on the corner of Forty-Second street and Madison avenue and four lots on Forty-Second street, right back of that lot. Be kind enough to tell me if those pieces of property are not 'all now in use for business purposes. ” "Q. Is it not true that a greater portion of this property which is covered by this agreement is at present occupied for business purposes?” “Q. Does the American Safe Deposit Co., the Hotel Devonshire, and a number of stores, now occupy this property covered by this agreement?”
    Argued before VAN BRUNT, P. J., and O’BRIEN and LAWRENCE, JJ.
    Kellogg, Rose & Smith, (L. Lafiin Kellogg, of counsel,) for appellant.
    George W. Van Slyck, for respondent.
   LAWRENCE, J.

On the 21st of' September, 1888, the plaintiffs’ testator and defendant entered into an agreement in writing, whereby the defendant agreed to sell to the plaintiffs’ testator, and the latter agreed to purchase, the premises situated on the northerly corner of Madison avenue and East Forty-First street, in the city of New York, for $105,-000, $2,000 to be paid on the execution of the agreement, and the balance on the taking of the title. The defendant agreed, on receiving such payment, to execute, acknowledge, and deliver to the plaintiffs’ testator a proper deed containing a general warranty and the usually full covenants for the conveying and assuring to him or his assigns the fee simple of the said premises, free from all incumbrance, said deed to be delivered on the 22d of October, 1888, at 12 o’clock M., at the office of J. Romaine Brown & Co., at which time the plaintiffs’ testator was to have possession of said premises. On examining the title, the attorney employed by the plaintiffs’ testator discovered matters which he alleged to be defects in the title. The time for completion was first extended to the 24th of October, and at the request of the defendant again extended until the 30th of October, 1888, on which day the parties met, and, the attorney still deeming the title defective, the purchase money and a full covenant warranty deed were tendered by the respective parties, and a demand for the return of the $2,000 and the expenses incurred was made of the defendant, which was refused. All further negotiations then ceased. This action is brought to recover the damages alleged to have been sustained by reason of the inability of the defendant to comply with the terms of the agreement. The defendant, in her answer, denies that the alleged defects complained of by the plaintiffs in point of fact existed; that, if they existed, the plaintiffs’ testator had waived them; and also sets up as counterclaims—First, that Mr. Kountze toook possession of the freehold, and sold certain portions thereof, by means whereof the defendant sustained damage in the sum of $1,500; and. second, that by reason of the failure of the plaintiffs’ testator to carry out and perform his contract, the defendant was put to loss and damage in removing her property from said premises, and lost the rental value thereof, amounting in all to the sum of $9,000. The defects in the title relied upon by the plaintiffs are these: First. That on the 4th of June, 1857, Margaret Burr, Mary Burr, and Sarah Burr, being then the owners, as tenants in common, of the lands on the easterly side of Madison avenue, lying between Fortieth and Forty-Sec- and streets, entered into a written agreement that they would not erect any buildings other than dwelling houses at least two stories high, of brick or stone, of churches of the same materials, on the lands, or any part thereof, excepting ordinary yard appurtenances; and also no livery stables, slaughterhouses, and several other erections and occupations known as “nuisances” in the law should be made, erected, or permitted on said land or any part thereof; and, further, that in all future sales, leases, or other disposition of any of the land aforesaid by the parties to .said agreement the purchasers, lessees, or occupants shall be required to ■come under and be bound by such restrictions, and that the same shall run with the land, and that any party thereto, or person aggrieved by ■any violation thereof, might apply for relief by injunction or otherwise. Second. The second defect in-the title pointed out by the plaintiffs is '.an agreement between Sarah Burr, R. H. L. Townsend, and Edward Livermore, dated October 1, 1866. The parties to that agreement •owned the entire block on the easterly side of Madison avenue; Sarah Burr owning seven lots, Townsend one lot, and Livermore having a contract to purchase a portion of the property. By that agreement the parties covenanted and agreed that the front of any houses to be erected •on the said lots shall be set back on a uniform line of five feet from the •easterly side of Madison avenue, and that the said space of five feet .should forever hereafter be kept open for a court yard, and should not be built upon or obstructed by any erection whatever, other than by by windows, stoops, or entrances, etc. It was further agreed that this ■covenant should run with the land, and be binding on all future owners, .and that all deeds executed by the parties of any of the said lots should be made subject to the conditions of the agreement. Third. The third ■defect relied on by the plaintiffs is an encroachment in the rear of the Jot by the wall of an adjoining house, so that the lot proposed to be conveyed is only 99 feet 8 inches, instead of 100 feet, in depth. The learned justice before whom the cause was tried, after refusing to dismiss •the complaint, or to allow the defendant to go to the jury upon certain points submitted, directed a verdict in favor of the plaintiffs, and the •case comes before us on exceptions to such ruling, and as to the reception or rejection of evidence offered on the trial.

We are of the opinion that the covenants in the two agreements above ■referred to constitute incumbrances upon the property contracted to be conveyed, and that, while in existence, the defendant could not convey to the plaintiffs’ testator the good, marketable title to which he was entitled. Irving v. Campbell, 121 N. Y. 353, 24 N. E. Rep. 821; Moore v. Williams, 115 N. Y. 586, 22 N. E. Rep. 233. The covenants in •each of the agreements are expressly stated to run with the land, and they constitute reciprocal easements, to which subsequent grantees be•come entitled, and by which they are bound. Lattimer v. Livermore, 72 N. Y. 174; Trustees v. Lynch, 70 N. Y. 440; Wetmore v. Bruce, 118 N. Y. 322, 23 N. E. Rep. 303; Huyck v. Andrews, 113 N. Y. 81, 20 N. E. Rep. 581. The plaintiff was, in our opinion, entitled to rely ¡upon his covenants, and it was therefore not error for the justice before whom the cause was tried to exclude the evidence offered by the defendant for the purpose of showing whether the covenants were beneficial or otherwise. In Moore v. Williams, 115 N. Y. 592, 22 N. E. Rep. 234, it is said:

“A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by a resort to paroi evidence, or when there is an apparent incumbrance which can be removed or defeated only by such evidence."”

The case of Trustees v. Thacher, 87 N. Y. 311, stands upon peculiar facts. In that case it was held that, in view of the changed character of Sixth avenue, the court would not, in the exercise of its discretion, sustain an action for the specific enforcement of certain restricted covenants contained in an agreement between the plaintiffs and one from whom the defendant by sundry mesne conveyances acquired title. But it was not held that one who violated such a covenant would not be liable to an action for damages by an owner of one of the lots referred to in the agreement containing the restrictive covenants. See, also, Amerman v. Deane, 132 N. Y. 355, 30 N. E. Rep. 741. There the court refused an injunction after the building which was erected in violation of the covenant had been completed, but it awarded damages. The plaintiff in this action was not bound to take a title which would subject him to an action for damages by adjoining owners.

The question put to the witness Bette in relation to the change in the character of the neighborhood was properly excluded, because no such defense as it was intended to sustain is pleaded, and also because, as already stated, although the fact of such change may induce a court of equity to refuse to specifically enforce a restrictive covenant, such change does not present an answer to any action at law which might be brought by one interested in the covenant for damages sustained by reason of its violation.

The objection to the deficiency in the quantity of the land of four inches in the rear of the lot, where the price to be paid is as large as in this case, is also a grave objection to the marketable quality of the title under consideration, but, having determined that the agreements of 1857 and 1866 so seriously affect the title as to justify the plaintiff in refusing to complete, it is unnecessary to pass definitely upon that question. The defendant strenuously contends, however, that, even if the defects in the title referred to by the plaintiff existed, they were waived, and that, therefore, he cannot succeed in this action. In this contention we think she must fail. The alleged waiver is based upon the fact that in a conversation with the defendant’s husband on the 17th of October the plaintiffs’ testator agreed to sell to Dr. Helmuth certain bookcases attached to the premises. On the next day the mechanics, under Helmuth’s direction, commenced to take them down, but on the morning of the 19th the plaintiffs’ testator, by letter addressed to defendant’s husband, “suggested and advised” that, as the examination of the title had not been fully completed, and the title found satisfactory, they should defer the moving of the bookcases. We are unable, on the facts, to hold that the conversation which took place between the plaintiffs’ testator and the defendant’s husband was an acceptance of the title by the plaintiffs’ testator, or a waiver of any existing defects. It is quite clear that the examination had not then been completed. It seems to have been completed on the 19th of October. After that we find that two extensions were granted, the last of which is dated October 24,1888, by which the time is extended to the 30th, and the last memorandum recites that, it is granted at the request of Mrs. Helmuth. If there had been a waiver of the alleged defects in the title, or if the plaintiffs’ testator had technically taken possession by what occurred between him and Dr. Helmuth on the 17th of October, the defendant would hardly have asked an adjournment of the closi ng of the title. Beyond the transactions in regard to the bookcases, there can be no pretense that the plaintiffs’ testator ever exercised any acts of ownership over the premises, or should be even technically regarded as having taken possession of them; and we find nothing in that transaction upon which a waiver can be based. Bensel v. Gray, 80 N. Y. 517.

From what has been already said it is apparent that the counterclaims of defendant were properly dismissed. The plaintiffs’ testator had exercised no acts of owmership over the bookcases. He had, in substance, agreed to sell them when the title was found to be good, and his letter dated October 18th is entirely inconsistent with the idea that he claimed to be the owner of them. The plaintiffs’ objections to the title having been determined to be good, there was no foundation for the counterclaim for rent. No error, in our opinion, was committed in refusing to submit the question of waiver to the jury on the evidence before the court. Conceding the facts to be as claimed, there was, as matter of law, no waiver. The defendant’s exceptions should therefore be overruled, and judgment rendered for the plaintiffs, with costs. All concur.-  