
    Anthony Schwoerer, Plaintiff, v. John P. Leo, Defendant.
    (Supreme Court, New York Special Term,
    December, 1902.)
    Marketable title — Building restriction.
    In January, 1886, one Monteith, the owner of eighty-four feet on the north side of a street running east and west, conveyed to one Williams the easterly twenty-five feet with a covenant that any building erected on it should be set back from the building line at least sixteen feet, and, in February, conveyed to him the next westerly eighteen feet with a set-back covenant which expired in 1901. In 1892 Monteith’s executors conveyed to one Westervelt the remaining forty-one feet without such a covenant. No general scheme existed in the locality to set back the houses sixteen feet from the building line nor did Monteith impose any such restriction upon lots he owned upon the south side of the same street. A purchaser from the. defendant, of a plot containing seven feet of the twenty-five foot plot, refused the title as unmarketable and sued for what he had paid on account.
    Held, that the title was marketable.
    That the covenant ran only to Monteith.
    That if an easement ever existed in favor of the eighteen foot plot, it was extinguished when, in February, 1886, the title to it and to the twenty-five foot plot united in Williams, and the easement was not revived by him.
    That Monteith did not intend to reserve for the forty-one foot plot any easement over the twenty-five foot plot and that, if he did, his executors did not, by their deed to Westervelt, convey to him any easement that any building, whenever it might be erected on that plot, should be set back.
    Action to recover money paid on account of a contract for tha purchase of real estate.
    Albert L. Phillips, for plaintiff.
    Dulon & Roe, for defendant.
   Scott, J.

This is an action to recover the money paid on account of a contract for the purchase of real estate, on the ground that the defendant, cannot convey a good and marketable title. Tha premises covered by the contract consist of a lot on the northerly side of West One Hundred and Eifty-fourth street, between St. Hi cholas and Amsterdam avenues, containing twenty-five feet in width. The incumbrance alleged relates to the seven feet on the easterly side of the lot. The property comprises part of a plot eighty-four feet in width conveyed in 1881 by Sarah Palmer to James Monteith. In January, 1886, Monteith conveyed to Edward E. Williams the easterly twenty-five feet of the plot by a deed which contained the usual covenant against nuisances, and a further covenant that the premises should not be occupied for other purposes than as a private dwelling for a period of fifteen years, and that any building to be erected upon the premises should not be nearer the building line than sixteen feet. It is this covenant requiring the building to be set back which constitutes the incumbrance set up in the complaint, since the lot contracted to be conveyed includes seven feet of the lot described in the aforesaid deed. In February, 1886, Monteith conveyed a plot eighteen feet in width,. adjacent to the lot above conveyed, on the west thereof, to the same Edward E. Williams, by a deed containing the usual covenant against nuisances and a further covenant that the premises should not be occupied for any purpose other than a private dwelling for a period of fifteen years, and that any building to be erected upon said premises during that period should not be nearer to the building line than eleven feet. The premises then conveyed comprise a part of the property contracted to be sold by defendant to plaintiff, and since fifteen years have elapsed they are not now subject to the set-back covenant. The forty-one feet comprising the westerly half of the plot conveyed by Sarah Palmer to James Monteith were not sold by the latter during his lifetime, but were conveyed by his executors in 1892 by a deed which contained a covenant against nuisances, and a covenant that for a limited period the premises should be occupied only for a private dwelling, but contained no covenant respecting the setting back of any building that might be erected. Monteith never owned any other property on the north side of One Hundred and Fifty-fourth street. He did own property on the south side of the street between the same avenues which was conveyed by his executors to several grantees by deeds containing covenants against .nuisances, and against erecting anything but private dwellings for a period of fifteen years, but/no set-back covenant. To the west of the lot first conveyed by Monteith to Williams stand eleven houses and lots acquired by John Kelly by deed dated October 16, 1874, and conveyed by Anna P. Kelly, devisee of John Kelly, in 19.02. These houses, which have been standing for some twenty years, are built upon a terrace, and are actually set back from the building line, but neither the deed to Kelly nor the deed from Mrs. Kelly contains any restrictions or covenants as to the setting back of any building to be erected upon the lots. Hence, if the plaintiffs contention be upheld, the twenty-five feet conveyed by Monteith to Williams in January, 1886, is the only lot upon the northerly side of the street upon which a building cannot be erected out to the building line. It will be observed that there were no reciprocal easements imposed upon any other lot, in favor of the lot first conveyed to Williams, nor was there any mutuality of covenant to sustain Williams’ covenant to set back any building to be erected. As to all his other property Monteith kept himself free to build as he chose. This lack of mutuality, or reciprocal obligation distinguishes the present case from the authorities upon which the plaintiff relies. Trustees of Columbia College v. Lynch, 70 N. Y. 440; Kountze v. Helmuth, 67 Hun, 343; Lattimer v. Livermore, 72 N. Y. 174; Wetmore v. Bruce, 118 id. 322; Raynor v. Lyon, 46 Hun, 227. Mor can it be said that the restriction contained in the first deed to Williams constituted part of a general and. uniform plan of restriction, since nowhere else is to be found any evidence o'f such a scheme. On the contrary Monteith’s second deed to Williams and all the deeds by Monteith’s executors negative any presumption that they or Monteith intended to establish a general scheme of perpetual restriction upon building out to the building line. The case as presented by the proof is brought squarely within Equitable Life Assurance Society v. Brennan, 148 N. Y. 661, wherein the court said: “ If the covenant is silent; if there is no mutual agreement or understanding between the various owners creating an easement; if there is nothing in the surrounding circumstances from which mutual rights can be fairly inferred, then no action (for an injunction to restrain the violation of a covenant) can be maintained.” I am clearly of the opinion that the covenant in.question ran only to James Monteith and was not intended to run, and in fact did not run in favor of any grantee from him or his executors of any other lot or parcel of land; upon the conveyance to Williams of the adjoining lot on the west in February, 1886, the easement, if it ever existed in favor of the lot secondly conveyed, was extinguished as to that lot by the union of the title to both lots in the same owner (Post v. Weil, 115 N. Y. 361), and that the'restriction was never revived by Williams, the only restriction contained in his deed to Clara M. Williams of the property now in dispute being the covenant against nuisances contained in the second deed from Monteith to Williams; that Monteith did not reserve or intend to reserve as to the property first sold to Williams an easement in favor of the land which he retained, and if he did that his executors by their deed to Westervelt of the westerly half of the property acquired by- Monteith from Palmer did not convey to Westervelt any easement as against the property in question that it be perpetually set back. I, therefore, find no such incumbrance upon the property as is pleaded by the plaintiff as a reason for rejecting the title, and as all the evidence necessary to establish the freedom of the property from incumbrance is a matter of record, I find the title to be not only good, but marketable. There must, therefore, be judgment for the defendant dismissing the complaint upon the merits, with costs and an extra allowance of sixty dollars.

Judgment for defendant, with costs and an extra allowance of sixty dollars.  