
    Michael W. Flynn, Appellant, v. New York, Westchester and Boston Railway Company, Respondent, Impleaded with Franklin Contracting Company and Others, Defendants.
    Second Department,
    June 17, 1910.
    Beal property—restrictive covenants — use of lots exclusively for dwellings — building railroad — injunction — pleading — partial defense — violation of covenant.
    Covenants in a deed restricting the buildings to be erected upon land to dwellings of a certain value and style, to be used only as residences and standing a certain distance from the street, and forbidding closed fences and the keeping of poultry, are not void as against public policy.
    It rests upon-the discretion and conscience of the court in a suit for injunctive relief whether to grant an injunction or other appropriate remedy.
    
      Where a suit is bróught to restrain a railroad from constructing and maintaining its line, with the permission of the owner, Over certain lots which are subject to covenants restricting their use to the erection of buildings, a defense alleging- that defendant is a legally organized railroad and has adopted, pursuant to law, a route which requires the use Of the land iti question and that public convenience and necessity require such use of the land is-demurrable.
    
      It seems, that had the'defense been-pleaded as a “partial-” defense, it.would have been good-against demurrer.
    . The construction of a railroad on land subject to covenants restricting its use to the erection of dwellings and binding the owner not to build any house of less than á certain value and of a certain kind and style violates the covenants.
    Appear.by the plaintiff, Michael W: Flynn, from a judgment of the Supreme Court in favor of the defendant railway company, entered in: the office of the clerk -of the county of Westchester on the 26th day of January, 1910, overruling a. demurrer to certain defenses set up in the answer of the said defendant.
    
      Edwin L. Kalish [Harrison J. Conant with him on the brief], for the appellant.
    
      Allen Wardwell, for the respondent.
   Carr, J. :

The plaintiff is the owner of some-real property at New Rochelle in Westchester county, which at one time was part of a tract of land which had been improved and offered for sale in. lots by one. Prince. Pririce.sold the lots to purchasers under restrictions as follows

. “ And the- said party of the second part does covenant and agree that the grant and conveyance as aforesaid shall be subject to the following covenants, conditions and restrictions, which shall be binding upon them, their heirs, executors, legal representatives and grantees of the respective parties: - . -
“ That the said party of the second part shall not build or permit to be built on said premises any house or dwelling of a value - l'eés than'$4,500,. or being less than two and one-half stories in-height, or of the style known as flat-roof.’
“ No part of said.premises shall be used for any Hospital, Insane, Inebriate or other Asylum, public or private, or Cemetery or place of burial.
"No building or structure for any business purpose whatsoever shall be erected on said premises.
"No part of any structure, erected shall be within fifteen feet of any street or street line upon which the lot or lots abut, except the steps, which may project a reasonable distance beyond the structure.
“No dwelling shall be erected on any plotless than two lots.
“ No part of any barn, stable or other structure or structures of any kind or description erected upon said premises shall be within sixty feet of the line of the street or avenue on which the lot fronts, or within twentyrfive feet of any side street; nor shall there be érected on any. part of said lot-any slaughter-house, smith-shop, forge, furnace, steam engine, brass foundry, nail, iron or other foundry, or any manufactory of gunpowder, glue, varnish, vitriol, ink, turpentine, or for the tanning, dressing or preparing skins, hides or leather, or any manufactory whatever ; or any ale house, brewery, distillery,' saloon, liquor store, hotel or inn, or livery stable, or any other obnoxious, dangerous or offensive business or trade, or any building of the character or description known as a tenement house. There shall be no toilet outhouse of any kind or description upon the premises. No closed fence shall be erected on said premises, excepting on the rear line thereof, and that no fence shall be erected on said premises more than four feet high, excepting on the rear line thereof.
, “ No poultry shall be kept upon any part of the premises unless such poultry is retained or inclosed in proper runs or inclosures.
“ It being understood and agreed that said covenants and conditions shall run with the land, and shall be enforceable both as covenants and conditions, with the right of re-entry in case of breach thereof.”

Among the purchasers was one Alice Harmer, who subsequently conveyed her lots to the defendant the City and County Contract Company by deed which contained clauses as follows.:

Subject, nevertheless, to covenants against nuisances and restrictions as to buildings and conditions contained in former deeds,” and
“ Subject als.o to the equitable rights of owners of other lots upon said map of Theodore Prince to have enforced the covenants, con- ' ditions and restrictions contained in former deeds affecting the premises.”

The City and County Contract Company is about to permit the defendant railroad company to construct and maintain a steam railroad over 'and along the lots purchased from Harmer. The plaintiff asks injunctive relief against such use of the land. The defendant, the railroad company, .sets up in its answer several separate and distinct ” defenses, of which two have been demurred to by the plaintiff as insufficient in law; and the demurrer having been overruled, this appeal is taken.

The “separate and distinct” defenses in question are numbered “ Second ” and “ Fourth.” Thé first in order is in effect that the defendant is a legally organized railroad company with all necessary franchises and consents of local authorities; and lias adopted, pursuant to law, a plan of route for the construction of its railroad, and that such plan requires the use of the land in question, and that the public convenience and necessity require the use- of said land for railroad purposes. The next defense, in order for the purposes of this appeal, is in effect that the restrictive covenants which the plaintiff seeks to enforce “ are wholly void and without, effect, being against public policy.”

That this last-mentioned defense, numbered “ Fourth,” is insufficient on its face seems to me so clear as to forbid any possible discussion, beyond the mere observation that restrictions of the character set forth in the complaint have been upheld and enforced in equity between private parties so frequently-and so continuously as to render any present citation of authority wholly unnecessary. Is there any difference in rule because the party violating the covenant is a steam railroad company organized for public purposes ? The answer to this question brings up the sufficiency of the defense numbered “Second.” If this defense had been pleaded as “a partial defense,” it would have been good against demurrer. The action being in equity for injunctive relief, it rests upon the discretion and conscience of the court whether an injunction should be granted or other appropriate relief awarded. (Raymond v. Transit Development Co., 65 Misc. Rep. 70; affd. on opinion, below, 134 App. Div. 981.) But the defense is not. pleaded as “partial,” and-must be considered as intended as a complete defense. (Thompson v. Halbert, 109 N. Y. 329.) That it is not a complete defense seems beyond argument. It is. true that a railroad company is a quasi public agency vested with the power of eminent domain, and, for its legitimate purposes, can take whatever land it requires, whether subject to restriction or not; but it cannot take an inch of any one’s land without making due compensation to the owner and to those who have legal and equitable rights therein. The State itself cannot do this, much less its creature. The railroad company has not taken this laud by eminent domain and thus extinguished all outstanding rights, but lias acquired it by purchase, which renders its ownership subject to all equitable rights of which it has actual or constructive notice. While the court may or may not hinder the use of this land by in junction, it may at the same time attach to its refusal of injunctive relief a condition of making compensation for actual damages. I tldnk no one will question this. It is sought, however, to sustain the judgment of the Special Term on the theory that the restrictions pleaded in the complaint do not in fact relate to the construction of steam railroads on these lots. It is true that nowhere in them does there appear any such words as “ steam rail- ' roads.”' But this method of interpretation is, to speak mildly, over-literal. If the language of these restrictions means anything whatever, it means that the land affected shall not be used for any other purpose than the erection of dwelling houses not to cost less than $4,500, nor to be of less than two and a half stories in height, nor to have a “flat roof/’ permitting, however, the erection of barns and other similar structures appurtenant to dwellings. The contention that the turning of this land into a roadbed for a steam railroad is not within the prohibitive purpose of these restrictions is wholly untenable.

I recommend, therefore, that the interlocutory judgment overruling the demurrer be reversed, with costs, and that the demurrer be sustained, with leave to the defendant to serve an amended answer on payment of thirty dollars costs within twenty days.

Hirsohberg, P. J., Woodward, Thomas and Rich, JJ., concurred.

Interlocutory judgment overruling demurrer reversed, with costs, and demurrer sustained, with leave to the defendant to serve an amended answer on payment of thirty dollars costs .-within twenty  