
    Homer Knapp, Resp’t, v. Leo J. Hall, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 22, 1892.)
    
    Deed—Building restrictions—Injunction.
    The common source of title of the parties subdivided a large tract of land, and to induce persons to purchase represented that each of the lots lying west of a certain street were to be conveyed subject to restrictions, including one forbidding building within a certain distance of the street line. All the deeds except that to defendant contained such restriction. Held, that to entitle plaintiff to an injunction restraining defendant from building within such distance it was necessary to show that he or his grantor were induced by such agreement to purchase, and also that defendant had knowledge or notice of these paroi promises of the grantor at the time of his purchase.
    (Macomber, J., dissents.)
    Appeal from an order of the Monroe special term entered in the office of the clerk of Monroe county on the 29th day of August, 1891, denying defendant’s motion to vacate and set aside an injunction order granted herein on the 5th day of June, 1891.
    
      Theodore Bacon, for app’lt; John F. Dor thy, for resp’t.
   Lewis, J.

Frederick S. Minges and others, being the owners of a tract of land in the city of Rochester, subdivided it into 117 city lots and caused a plan of the said subdivision to be made and filed in the Monroe county clerk’s office, and it was designated as the Beechwood tract. They put the lots in the market for sale, and, for the purpose of inducing persons to purchase the same, they represented and stated that each of the lots in the tract lying west of Chamberlain street were to be sold and conveyed subject to certain restrictions, among which was one that the buildings or dwelling houses to be erected upon the lots should stand not less than fifteen feet from the front of each lot.

On the 5th day of October, 1888, said owners sold and conveyed to one James Marden lot 76 and others upon said Beech-o wood track On the 18th day of December, 1890, the plaintiff in this action-purchased from Marden lot Ho. 76. Prior to the 10th day of April, 1891, Minges and others had sold and conveyed or entered.into contracts to sell and convey all the lots upon said tract lying west of Chamberlain street, except lots Ho. 77 and 78, and the covenants and restrictions mentioned were inserted in each of these deeds and contracts. These lots were part of the Beechwood tract and were west of Chamberlain street. On the 10th day of April, 1891, Minges and others conveyed to the-appellant, Leo J. Hall, lots 77 and 78. The deed of these lots did not contain any of the restrictions mentioned. On obtaining title to said lots 77 and 78, the appellant commenced erecting a building upon lot 78, which building extended to within seven feet of the street in front of the lot. The respondent, on the 15th day of June, 1891, commenced this action to enjoin and restrain the defendant during the pendency of the action and perpetually, by the judgment of this court, from erecting any building upon his lots extending nearer than fifteen feet to the street in front of them, and procured a preliminary injunction order restraining the appellant from continuing the erection of his building nearer than fifteen feet to the front line of his lot The injunction order, was based upon the verified complaint and upon affidavits. Defendant moved ex parte upon the plaintiff’s papers for an order vacating the injunction, which was denied. He then moved the court at special term, upon a verified answer and upon affidavits, to set aside the order. His motion was denied and he appealed from the order denying his motion to this court

The contention of the respondent is that the owners of this tract of land, by their paroi representations to the purchasers of the various lots, imposed upon the whole tract the restriction as to the location of the houses upon the lots. As stated, the various conveyances containing the restrictions purported'to restrict simply the land described in each conveyance. In order to be entitled to an injunction restraining the appellant, it was necessary, under . the rule of law invoked by the respondent, that his papers upon which the injunction order was based should clearly and- satisfactorily show that the appellant purchased his lots with notice of these paroi declarations and promises of the general grantors.

If the rights and interests of the appellant to the lands which he holds under a deed containing upon its face no restrictions are to have easements or servitudes imposed upon them by the paroi declarations and promises made to others by his grantors, the proceedings should not be based upon shadowy and uncertain evidence. The respondent was required to show that the appellant at the time he took his title had notice of the alleged restrictions -upon the lots, and that when he or his grantor Harden purchased the plaintiff’s lot-, their grantor agreed that the restrictions mentioned should be imposed upon the whole tract. If neither the plaintiff nor his grantor was influenced in purchasing the lot by any promises or declarations of their grantor, as to the restrictions upon the whole block, there is- no equitable ground for the plaintiff to ask for relief. If the appellant was ignorant of any restrictions when he took title to his lots, it would not be claimed that he could be bound by the paroi statement made to others by his grantors. Ho authority to which we have been referred has ' gone to the extent of holding that a grantee’s lands could have imposed upon them by oral declarations restrictions of which he had no knowledge at the time he took his title. In the case of Tallmadge v. The East River Bank, 26 N. Y., 105, which goes as far, if not farther, than any other case to sustain the respondent’s contention, the grantee had ample notice when he took title of the restrictions upon his premises, and the plaintiff took his title upon assurances that the restrictions were imposed upon the defendant’s land. The only evidence in the case which .the plaintiff can claim tends to show notice to the appellant, is contained in the 7th subdivision of the complaint and in the respondent’s affidavit of the date of June 13, 1891. In the complaint it is stated that the defendant Hall, before- the purchase of lots 77 and 78, had knowledge and notice that such restrictions and covenants had been imposed upon all lots of the tract lying west of Chamberlain street, and which included the lots of the appellant. The complaint does not state any facts upon which this assertion that the defendant had knowledge and notice was based. And, in the absence of the statement of the facts, the statement in the complaint fails to prove anything. The plaintiff’s affidavit states that prior to the 10th day of June, 1891, he had several conversations with the defendant Hall regarding the erection of his building on lot 78 of the Beech wood tract nearer than fifteen feet to the front of said-lot; that in the course of said conversations the defendant stated to the plaintiff in substance that he, the said Hall, knew the said Beechwood tract was restricted, but that he purchased his lots 77 and 78 on said tract without restrictions, and paid a big price for the privilege of utilizing them as he saw fit. The conveyance of "the lots to Hall was dated April 10, 1891, two months prior to the 10th day of June mentioned in the affidavit.

The affidavit fails to state that the appellant admitted that he knew of the restrictions at the time he purchased his lots. His statement that he purchased his lots without restrictions and paid a large price for the privilege of utilizing them as he saw fit negatives the idea that he could have known of the restrictions at the time he purchased his lots. The affidavit of the appellant read upon his motion to dissolve the injunction states positively that he had no knowledge or information of the alleged restrictions at the time he took his title, and the affidavits of his grantors, Frederick S. Hinges, Gass Williams and Emma H. Williams, .state that the lots were not restricted and that they never informed the appellant of any restriction upon the lots at any time. All the evidence furnished by the respondent to show that he or his grantor, Harden, were influenced in their purchase of the lots by any promises of their grantors, is contained in the third and fifth subdivisions of the plaintiff’s complaint The statements therein are made upon information and belief, without giving the source of the information and belief. Such statements prove nothing. It it stated in the fifth subdivision of the complaint that at the time plaintiff entered into his contract with Harden for the purchase of the lot, he was informed that the covenants and restrictions had been inserted in all the deeds and contracts made, and that the grantors had promised and agreed to insert the same in .all subsequent deeds and contracts for the sale of lots upon the tract. The complaint fails to state where or from whom he obtained his information. It must be held, we think, that the plaintiff failed to show that he or his grantor was influenced by any promise or agreement of the owners of the land to impose the restrictions upon all the lots to be conveyed. We think the 2")laintiff failed to show facts entitling him to the injunction and that the order appealed from should be reversed, with ten dollars costs and disbursements, and that the motion to dissolve the injunction should be granted, with ten dollars costs of motion.

Dwight, P. J., concurs; Hacombeb, J., dissents.  