
    Cornelius E. Bimson and Others, Respondents, v. Albert H. Bultman, Appellant, Impleaded with The German-American Improvement Company and Frederick Brommer.
    
      Estoppel — restriction that 'all buildings upon a tract shall be of brick or stone — violation by a grantee having notice, but not restricted in his deed—the equitable . remedy by injunction of restricted purchasers depends upon the circumstances.
    
    Where an owner of land contracts with the purchaser of successive parcels in respect to the manner of the occupation and improvement of such parcels, he thereby affects'the remainder of the land with an equity which requires that it also be occupied and improved in conformity to the general plan. This-equity is "binding upon a subsequent purchaser of the remaining parcel who " has notice of the prior agreement, although his legal title may be Unrestricted.
    The rule 'applicable to such cases rests upon the doctrine of estoppel, under the ■ rule that , where a party, by his declaration or conduct, has induced another person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence will be to work an injury é . to such other person, or to some one claiming Under him.
    
      The circulation oí maps of a tract and the erection of signs on the property, stating, in effect, that all buildings erected on the tract must be either of brick or stone, constitute a representation of an existing fact relating to the property, of the same character as a representation relative to a boundary of the land conveyed.
    The power of a court of equity to grant an injunction against one who threatens to violate an oral agreement, of which he has notice, as to the manner in which land shall be occupied, is well established, but the manner and extent of the exercise of the power must depend upon the circumstances of the particular case.
    The construction of a frame building upon a part of a tract containing 1,600 lots does not necessarily prejudice another proprietor, and the power of the court to grant an injunction preventing it should not be exercised, unless the frame building is being erected in the same street or block with the property of the proprietor aggrieved, or (if erected in another street or block) in close proximity thereto.
    Pratt, J., dissented.
    Appeal by the defendant, Albert H. Bultman, from a judgment of the City Court of Brooklyn in favor of the plaintiffs, entered in the office of the clerk of said court on the Yth day of December, 1895, upon the decision of the court rendered after a trial at a Special Term thereof, except so far as it adjudges that the complaint be dismissed as to the defendants The German-American Improvement Company and Frederick Brommer upon the merits.
    
      Charles H. Otis, for the appellant.
    
      Charles M, Earle, for the respondents.
   Brown, P. J.:

The German-American Improvement Company, in the year 1892,. was the owner of a tract of land in the twenty-sixth ward of the city of Brooklyn, of which it caused maps to be made, upon which said tract was laid out into streets and lots. These maps were distributed and circulated among real estate brokers and prospective buyers, and upon the reverse side thereof there appeared a lengthy advertisement, which contained inter aUa the following :

The attention of builders, buyers of houses or lots is called to the largest and most perfect real estate developing enterprise ever attempted in either Brooklyn or Hew York, Over 1,600 city lots, 20x100 feet, located in the Twenty-sixth Ward, Brooklyn, on the line of Kings County L. Road. * * *
“ Five miles of streets improved under direction of City Engineer. The entire tract restricted and controlled by one management. All buildings must be of brick or stone (no frame).”

In addition to the map and the statements thereon signs were erected' in three different places on the property containing ■ the statement that “ only brick or stone buildings were allowed to be built; no frame buildings.”

In 1893 the said company conveyed six lots to one Eierman and two lots to the plaintiff Bischoff, ' The deeds to these parties contained, covenants upon the part of the grantees that they.would not erect upon the. lots conveyed any frame building, or buildings of material. other than brick or stone. Eierman and Bischoff built upon their lots dwellings in accordance with the terms of the deeds, and subsequently Eierman conveyed five of his lots to the respondents other than Bischoff. At the time of the sales to Eierman and Bischoff the officers of said company orally repeated the statements contained in said map and. signs, and represented that no frame buildings would be permitted to be erected on said tract of land.

On August 28, 1895, the improvement company conveyed to the appellant three of said lots of land by a deed which contained no restrictions, against the erection of frame buildings, and immediately after the conveyance to him the appellant commenced the erection thereon of two frame dwellings. So far- there is no dispute as to the facts of the case. '

The court found that the appellant purchased with knowledge of the restrictions in the deeds to Eierman and Bischoff, and of the. statements and representations that had been made by the improvement company and its officers, and that Eierman and Bischoff purchased in reliance upon such representations, and these conclusions,' excepting that in reference to Eierman’s having been induced to purchase by said representations, we think, have support in the testimony. ■

The principle which supports the judgment in this action is that where an owner of land contracts with the purchaser of successive parcels in respect to the manner of the occupation and improvement of such parcels, he thereby affects the remainder of the land wi,th an equity which requires it also to be occupied and improved, in conformity to the general plan, and this equity is binding upon a subsequent purchaser of the remaining parcel, who has notice of the prior agreement, though his legal title be unrestricted. (Tallmadge v. East River Bank, 26 N. Y. 105 ; Trustees of Columbia College v. Lynch, 70 id. 440-447; Parker v. Nightingale, 6 Allen, 341; 3 Pom. Eq. Juris. § 1295, and cases cited in note.)

■ The- appellant contends that as the promise of the improvement company that the whole tract should be made subject to the same restrictions as were contained in the deeds to Eierman and Bischoff was by parol, and related to an incorporeal right in real estate, it is void by the Statute of Frauds. It would be difficult to overcome this objection if the existence of a contract in reference to' the use of the balance of the land by the improvement company was essential to the plaintiff’sright of action.

Cases of mutual covenants on the part of grantor and grantee, as well as cases between grantees of a common grantor, both of whom have covenanted to restrict the use of the several parcels conveyed to them, are easily taken out of the operation of the statute. (Parker v. Nightingale, 6 Allen, 341.)

But in this case no interest in the grantor’s land has been created by any instrument in writing. The agreement by which the use and improvement of such land is claimed to be restricted rests in parol only.

In Tallmadge v. East River Bank and the other cases cited by the respondent the oral agreement had been executed, and of course neither party could thereafter recall what had been done. (Newman v. Nellis, 97 N. Y. 285.) In the disposition of this case we may assume, I think, that the promise of the improvement company could not be sustained as a valid- contract which would support an action either for its enforcement or its breach, but it does not necessarily follow from that conclusion that a court of equity at the suit of a grantee may not restrain a grantor from doing upon the remaining land that which he orally promised not to do and that which the grantee covenanted not to do upon the land conveyed to him.

• The rule applied in the cases upon this subject rests upon the doctrine of estoppel.

Where a party by his declaration or conduct -has induced another person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequence would be to work an injury to such other person or to some one claiming under him. (Wendell v. Van Rensselaer, 1 Johns. Ch. 344-354 Storrs v. Barker, 6 id. 166 ; Dezell v. Odell, 3 Hill, 215; Brown v. Sprague, 5 Den. 545; Plumb v. Cattaraugus Co. M. Ins. Co., 18 N. Y. 392; Brown v. Bowen, 30 id. 519 ; 3 Washb. on Real Property, chap. 12, § 6, subd. 8.)

- An estoppel in pais does not create a technical title in land. Its., effect is to conclude a "party from denying the effect of liis statements or admissions designed to and which have influenced the conduct of another, and when so applied it is as effectual as a deed would be from the party estopped:

Humerous cases- on the subject are cited by Mr. Washburn in his work on Beal Property (supra), and others are collected in the notes.

The statements upon the - map circulated by the improvement company and upon" the signs upon the property and which were repeated by the officers of 'the company to Eierman and Bischoff were that the entire tract of land was restricted and that all buildings erected thereon must be of brick or stone.- This was a repre-; sentation of an existing fact relating to the property, of the same character as a representation as to a dividing line or a boundary of land conveyed.; and neither the improvement company or -the appellant can be permitted to deny the truth of those statements.. •

The power of a.court of equity to grant relief by an injunction in cases of this character is too well settled to admit of dispute, and so far as my examination has informed me it is within proper limits applied with general approval in the courts of this country and England.

But cases of this character are analogous to actions to enforce specific performance of a contract to convey real estate. ' Such applications are addressed to the sound judgment and discretion of the court, and it has been the settled doctrine of courts of equity to refuse such relief when it will result in great' hardship and injustice to one party ..without, considerable gain or utility to the other. (Trustees of Columbia College v. Thacher, 87. N. Y. 311; Conger v. N. Y., W. S. & B. R...R. Co., 120 id. 29.)

In the- present case the improvement company laid put into-streets and lots a tract fully one-half mile in length and a quarter of a mile in width. There is shown upon the map seven streets running north and south and eight streets running east and west.. There are about thirty-six blocks, containing in all 1,600 city lots. It was undoubtedly the intention of the improvement company that, the whole section should be built up with brick and stone dwellings. It made the representations in that regard in entire good faith without any intention to deceive or mislead. After four years of effort eighty-six lots have been built upon, all of which are owned by the company except twenty-two.

The appellant’s lots are located on the west side of Bradford street about 500 feet from the north line of the tract and about 550 feet from the east line thereof.

The lot owned by Bischoff is on the third street west of Bradford street and upon a block further to the south. In a direct line it is-distant from appellant’s lot about 800 feet. The lots owned by the plaintiffs Bimson and Lane are upon the west side of Wyona street next west of Bradford, and those owned by the other plaintiffs are on Vermont street, one block further to the west.

The question, therefore, is presented whether the court will enforce this restriction against the improvement company or a grantee thereof with notice, upon every lot within the tract described, or, if it will not, within what distance from the lot where the restriction is violated will it enforce it. It is impossible, of course, to fix any arbitrary line to control this question.

We are of the opinion, however, that the restraining power of the court should not be exercised unless the property where the frame dwelling is being erected lies in the same street or the same block with the plaintiff’s lots, or if in another street or another block in close proximity to the plaintiff’s property.

In all the reported cases that have come under my observation the property of the respective parties has been either adjoining or in the same street.

The covenant in the deeds permits the erection of two-story brick buildings for residence or business purposes without any restriction as to price, and it is quite apparent that buildings could be erected that would be entirely within the restriction which would be more detrimental to the surrounding property than a frame cottage. It is a matter of common observation in cities that the character of buildings -in one street has very little effect upon-the value of prop- ' erty in parallel streets. . That has been so even with the elevated railroads, and those structures have caused little or no depreciation in the value of the property in the parallel streets.

We are of the opinion that Bischoff’s property and the lots upon Vermont street are too remote from the appellant’s lots to be affected by the erection thereon-of a frame building. The lots upon Wyona street next west of -Bradford are owned by the plaintiffs, Bimson and Lane, and they derive their title through Eierman, and the testimony does not satisfy us that either he or either of his said grantees purchased in -reliance upon the representation that none but brick or stone buildings should be erected within the tract owned by the improvement company. Lane was not called as a witness. Bimson did not testify that he bought in reliance upon-any such representation: He testified that he had so informed Bultman, but he did not say that such was the fact.-'

Eierman did not sáy on his direct examination that he relied upon the statements that were made to him, but upon his cross-examination he testified as follows: “ I didn’t take any stock in it; I didn’t care what came, as long as I was above board and carried out my agreement; I never thought nomore of it; * * * I bought the lots very cheap, very low, indeed ;- in reference to this Mr. Brotnmer said we will sell you those lots very cheap indeed, if you will put up brick buildings on them setting back fifteen feet from the-street.” This testimony, we think, is not sufficient to create an estoppel.

We are of the opinion, therefore, that the judgment as to all the plaintiffs except Bimson and Lane should be reversed and the complaint dismissed, without costs.

As to Bimson and Lane it should be reversed and a new trial granted, with costs to abide the event.

• A*,, concurred, except Pratt, J., dissenting,

Pratt, J. (dissenting):

The principle is well established that a purchaser of real estate takes subject to all equities of which he has notice. In the present case it sufficiently appears that defendant -knew when he purchased that, plaintiff bought upon the faith of the restriction announced by the common grantor.

The defendant states that he consulted counsel upon the matter, . and was advised that if he secured a deed which contained no restriction he would be able to use his land as he desired. We think he was badly advised and that he must abide by the case of his grantor. The plaintiffs were prior purchasers in point of time and can enforcé the restriction against subsequent purchasers with notice.

■ It appears that the defendant Bultinan has not paid for his lots, and the circumstances of his alleged purchase create a good deal of doubt whether it was' more than colorable. What would probably be a-good test is to inquire if his grantor could have built the house in question. If he could not, neither could his grantee with notice.

In a case where the lot was so far away as that the damage to the plaintiff was not appreciable, equity would not take cognizance of a violation of the restriction; but where the fact is found that the plaintiff will be materially damaged, equity ought to intervene and grant relief.

Judgment affirmed, with costs.

Judgment as to the respondents Bimson and Lane reversed and a new trial granted, costs to abide the event. As to all other respondents the judgment is reversed and the complaint dismissed, without costs'.  