
    George Kitching and Others, Appellants, v. Kate C. Brown, Respondent.
    
      Covenant prohibiting the erection of a tenement house on land conveyed—an apartment house does not come within its prohibition.
    
    A deed contained a covenant prohibiting the erection on the land conveyed of any stable of any kind, coal yard, slaughterhouse, meat shop, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or other iron foundry, or any manufacturing of glass, gunpowder, starch, glue, varnish, vitriol, ink, petroleum or turpentine, or any cooper’s, carpenter’s or cabinet maker’s shop, or any establishment for tanning, dressing, preparing or keeping skins, hides or leather, or any brewery, distillery, sugar refinery or bakery, or drinking or lager beer establishment, circus, menagerie or public show or exhibition of animals, railroad depot, railroad stable, car engine or tenement house, or any other trade, manufactory, business of calling which may be in any way dangerous, noxious or offensive to the neighboring inhabitants.
    
      Held, that the covenant did not prohibit the erection on the ■ premises of three modern apartment houses seven stories high with two apartments on- each floor, which cost $400,000, and were of a character aiyl appearance correspond- ' ing with the first-class dwelling houses in the immediate neighborhood;
    That such houses were not “tenement houses” within the meaning of the covenant.
    Van Brunt,.P. J., and Lattgklin, J., dissented.
    Appeal by the plaintiffs, George Hitching and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 28th day of March, 1902, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.
    
      Henry W. Harden, for the appellants.
    
      Harold Swain, for the respondent.
   Patterson, J.:

At' the trial of this cause at Special Term the complaint was dismissed upon the merits. The action was brought by owners of dwelling houses on the southerly side of Seventy-first street, west of West End avenue, in the borough of Manhattan in the city of Hew York. Adjoining the premises owned by the plaintiffs and to the west thereof, are situated lots of land belonging to the defendant, upon which apartment houses have been built. Title to the lots, both of the plaintiffs and of the defendant, is derived from conveyanees made by the executors of one Jacob Harsen, and all such lots are affected by a covenant which is in the following words:

“ And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said parties of the first part, their successors and assigns, and with the owners for the "time being of the adjacent lots, jointly and severally, that neither "the said party of the second part, nor his heirs nor assigns, shall or will, at any time hereafter, erect any buildings within forty feet of the front of said premises, except of brick or stone, with roofs of slate or metal, and will not erect or permit upon any part of said premises any stable of any kind, coal yard, slaughterhouse, meat shop, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or other iron foundry, or any manufacturing of glass, gunpowder, starch, glue, varnish, vitriol, ink, petroleum or "turpentine, or any cooper’s, carpenter’s or cabinet maker’s shop, or •any establishment for tanning, dressing, preparing or keeping skins, Bides or leather, or any brewery, distillery, sugar refinery or bakery, •or drinking or lager beer establishment, circus, menagerie or public show or exhibition of animals, railroad depot, railroad stable, car, •engine or tenement house, or any other trade, manufactory, business •or calling which may be in any way dangerous, noxious or offensive to the neighboring inhabitants, and that no building shall be erected upon said lands, or any of them, which shall contain any alley or •entrances running through them for ingress or egress to-rear building. And it is declared that this covenant is a lien and runs with said lands, and binds the persons seized thereof for the time being.” The defendant’s property has a frontage of one hundred and fifty-three feet on Seventy-first street, and on the west immediately adjoins the Hudson River railroad. The defendant has constructed on her property three modern apartment houses, seven ¡stories high, with two apartments on each floor. Those structures .are high-class apartment houses, and they have all the conveniences and all the appliances of the best order of such houses; and externally, in their architecture, they are of a character and appearance . corresponding with the first-class dwelling houses in the immediate neighborhood. They are costly buildings, the amount expended in their erection being about $400,000. The houses are completed and ready for occupancy. The sole question presented for consideration on this appeal is, whether these structures of the defendant have been put up in violation of the covenant above quoted and are of such a character as to entitle the plaintiffs to an injunction.

We have had a covenant identical with this before us in the case of White v. Collins Building & Construction Co. (82 App. Div. 1), and there the question considered was the following': “Does the covenant against nuisances contained in the deed of * * * surviving executors of the last will and testament of Jacob Harsen, M. D., deceased, * * * dated June 10th, 1873, prohibit the construction of a high grade modern apartment house % ” In considering that case we endeavored to ascertain the intention of the parties in.making the covenant, and the result was that we construed the words “ tenement house,” in connection with other interdicted structures and uses of a nature that would injure the general character of the neighborhood and make it inappropriate for the residence of refined and prosperous people; and it is said in the opinion that “ it is common knowledge that in the year 1873, and prior to that time, modern apartment houses were unknown in the city of New York.” And it is further said: “An apartment house, the erection of which is contemplated by the defendant, would clearly not be á use of the property which, would be dangerous, noxious or offensive to the neighboring inhabitants. What was clearly contemplated was that a tenement house as then known and in use in the city of New York should not be erected upon the property. The erection of a hotel was not prohibited, nor was the use of the property restricted to dwelling houses so constructed that one dwelling should be under each roof. The restriction was confined to one particular residential use, viz., a tenement house. The. fact that hotels, boarding houses or houses' of that character, which were then common in New York, were not prohibited would seem to show that the parties did not intend to restrict the premises to residences of a particular kind; what was contemplated was that the building of. a tenement house as then, understood in New York should not be allowed, but the modern apartment house is a building entirely distinct from what was then understood as a tenement hoúse.” . Those views resulted from the construction given to the covenant itself; but the case came before us in the form of a controversy submitted upon an agreed statement of facts, and there were in that statement concessions of fact which aided in the interpretation of the covenant and which, to some extent, affected the decision of the court; but in the present case there is evidence of facts of the same character as those appearing and which were regarded as important in the White case. That case is authority for the conclusion that the restrictive covenant now under consideration against tenement houses is not to be construed as relating to such first-class apartment houses as the defendant lias erected upon her premises; and it is also authority for the proposition that the definition of a tenement house as contained in chapter 908 of the Laws of 1867 does not apply in this case, for that definition of a tenement house is restricted to that particular act.

The recent case of Levy v. Schreyer (177 N. Y. 293) is supposed to be in conflict with these views; but we do not so regard it. There was something more in the covenant there than a restriction upon the grantee’s right to erect or permit to be erected or carried on ” upon the premises a tenement house. There was also the positive covenant that the grantee would not erect any houses except private dwellings thereon; and that restriction is absent from this covenant. It was regarded as very material by the Court of Appeals. In that case the trial court found that the building erected was not a private residence or private dwelling, and it was upon all of the restrictive covenants that the Court of Appeals held that the plaintiff was entitled to an injunction against the use of the building as a tenement house or for any other purpose than that of a private dwelling or residence. So far as the present case is concerned, we have only the restriction against a tenement house to consider, and we do not regard Levy v. Schreyer (supra) as deciding that such costly, commodious and attractive first-class apartment houses as have been erected by the defendant are to be regarded as tenement houses within the intention or meaning of the parties when title was taken under the deeds from Harsen’s executors, which contained the restrictive covenant.

The judgment should be affirmed, with costs.

O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.

Judgment affirmed, with costs.  