
    Howard C. McDonald, Plaintiff, v. Joseph C. Spang, Defendant.
    (Supreme Court, Erie Special Term,
    July, 1907.)
    Buildings — Contracts restrictive of right to build — What constitutes violation of covenant — Distance from street line.
    Where the owner of a tract of land, who acquired title thereto under a conveyance providing that all dwellings thereon shall be erected not nearer than twenty-five feet to the front street line of the "lot, divide it into lots and conveys them to different persons by deeds containing covenants that "all dwellings shall be erected not nearer than twenty-five feet of the front street line of the lot, and the street is afterward widened by taking land from the fronts of the lots, and subsequent conveyances of the lots contain the same covenants, such covenants will not be referred to the original street line as it ran before the street was widened; but it will he deemed that the intention was to have all dwellings erected twenty-five feet from the street line wherever located.
    Motion to continue preliminary injunction.
    Alfred Hurrell, for plaintiff.
    Albert Spann, for defendant.
   Wheeler, J.

This is a motion to continue, pendente lite, a preliminary injunction restraining the defendant from erecting a house on his lot located on the east side of Park-side avenue in the city of Buffalo, nearer than twenty-five feet from his front street line, in alleged violation of covenants contained in deeds from the common grantors of the plaintiff and defendant.

The plaintiff and defendant own adjoining lots, and it is conceded got title to their respective properties from a common source.

The. property in question formed a part of a large tract formerly owned by the Buffalo Cement Company, which in 1889 conveyed the tract to George L. Thorne and Byron P. Angell, subject to the following restrictions:

“The parties of the second part further agree for themselves and their heirs and assigns that the said land shall he subdivided, sold and used in lots not less than forty (40) feet frontage on all the said streets and not exceeding two hundred fifty (250) feet in depth, and agree that no part of said land shall be used or occupied for any trade, manufacture, saloon or stable for hire, or in any objectionable manner whatever; that no nuisance shall be maintained or allowed by themselves or their tenants or subtenants, and, for the mutual benefit of all persons now or hereafter to be interested in said land or parts thereof, it is agreed that the said lands shall be used for residence and dwelling purposes only, and the usual and natural uses connected therewith and no other; that all dwellings hereafter erected on the northerly side of Orescent avenue shall cost not less than $2,000, on the southerly side of Orescent avenue not less than $2,500 and on all other streets indicated on said plan and map not less than $3,000; that each and every dwelling-house shall be erected not nearer than twenty-five (25) feet of the front street line of the lot, and that any barn on a lot adjacent to Amherst street shall be erected at least twenty (20) feet from Amherst street.”

It appears by the affidavit read by the defendant that Thorne & Angelí subdivided the tract and conveyed out the lots in question, including both that of the plaintiff and defendant, by deeds containing the following restrictions:

“ This conveyance is made and taken with the express understanding and agreement that the above described premises shall be used for residence or dwelling purposes only and the usual and natural uses connected therewith and no other, and that any and all dwellings erected thereon shall cost not less than $3,000, and shall be erected not nearer than twenty-five (25) feet to the front street line of the lot.”

The plaintiff and defendant each acquired title to their respective properties by mesne conveyances from Thorne & Angelí; and, when the defendant took title to his lot, he accepted a deed containing the same restrictions as those embodied in the deed from Thorne & Angelí.

It further appears that, subsequently to the conveyances by Thorne & Angelí, Parkside avenue was widened from a sixty-foot street to an eighty-foot street by proceedings taken by the city of Buffalo; and, by reason of this widening, the present east line of Parkside avenue is now seven and. one-half feet easterly of the original line of that avenue.

The defendant contends that, while his building is within less than twenty-five feet of the present street line, as it now exists, it is twenty-five feet away from the original line and, therefore, the restrictive covenants contained in the deeds referred to are not violated.

In this contention the court does not concur. Whether we look to the deed from the cement company or to the deed from Thorne & Angelí is not important here for both deeds contain covenants to the effect that all dwellings shall be erected “not nearer than twenty-five (25) feet of the front street line of the lot.”

It was the manifest purpose and intent of these covenants to preserve and keep open a clear space between the house and the street of twenty-five feet, for the purpose of light, air and general attractiveness. The important consideration was this clear and open space between the street and the dwelling, and not that the house should be a given distance from a given line. In other words, the restriction must be construed to refer to the changed line as subsequently established, so as to carry out "the manifest purpose of the grantors and to secure to their grantees the benefits intended to be conferred.

This view as to the construction to be given to the clause is borne out by the fact that, at the time the cement company’s deed was given, the tract had not been subdivided; and it had no reference to any fixed line, but was intended to secure twenty-five feet clear between the dwelling and the street wherever the street line might be established.

The defendant, by accepting his deed from his immediate grantor, seems to have acquiesced in and assented to this construction; for in this deed he covenanted “ that any and all dwellings erected thereon * * * shall be erected not nearer than twenty-five (25) feet to the front line of the lot.” The defendant’s deed was given to him in April, 1907, long after the widening of Parkside avenue; and, if it had been intended that these restrictions should refer to the old and original line of Parkside avenue instead of to the present, line, the deed of conveyance to the defendant should have so read. Such was not the intention of the parties, nor the construction to he placed on the various deeds in question.

The intention of the parties is to govern.

We, therefore, must conclude that the building now in process of erection by the defendant' violates the covenants prescribing the distance from the street line within which dwellings may be erected.

The building, also, is shown by the affidavits to contemplate the addition of a veranda in front, which would bring the dwelling still, nearer the street line.

Defendant’s counsel contends that the veranda constitutes no part of the building and, in computing distances, may be disregarded in determining whether or not the dwelling under erection is twenty-five feet from the street line.

As this question may become important in determining the future rights of the parties, it is but right to here indicate the views of the court, that a veranda is a part of the dwelling within the meaning of the covenants in question and that the building, including the veranda, should be set back at least twenty-five feet from the present street line.

The following cases seem to support this view: Skinner v. Allison, 54 App. Div. 45; Sanborn v. Rice, 129 Mass. 396; Levy v. Schreyer, 27 App. Div. 282; affd., 177 N. Y. 293.

It is further contended by plaintiff’s counsel that the covenant in the deed from the cement company to Thorne & Angelí is violated because the defendant is engaged in the erection of a two-family or flat-house, whereas the deed in question contains a covenant against the erection of any building to be used or occupied “ for any trade, manufacture, saloon or stable for hire, or in any objectionable manner whatever.”

The court cannot discover how a two-family house can be fairly deemed to be legally “objectionable

Covenants of this character are to be strictly construed against the covenant, and there must be shown to be a clear and plain violation of them to justify the interposition of a court of equity to restrain. Clark v. Jamures, 87 Hun, 215.

Perhaps two-family houses may not he as desirable in a residence district like this as a one-family house. ¡Nevertheless, that fact cannot make them legally “objectionable.” When this word was used in the original deed, something more must be deemed to have been intended than a mere matter of sentiment; and, if the continuance of the injunction depended on the mere question that the- building under process of erection is to be a two-family house, the plaintiff would necessarily fail.

To justify an injunction because the building in process of erection is a two-family house would necessitate the court’s. holding that such a house is not to be used “for residence and dwelling purposes,” which is expressly authorized by the deeds in question. The very statement of the case makes plain the untenahleness of the plaintiff’s position in this regard.

The defendant contends the covenant relating to the distance of dwellings from the street has been violated by others and, therefore, he should not be. held to a strict observance of them. The affidavits disclose but one violation on the entire street, but that there has been, one or more violations of a special covenant will not prevent the plaintiff affected by the defendant’s acts compelling him to obey the covenants. Zipp v. Barker, 40 App. Div. 6; Levy v. Halcyon Casino Hotel Co., 45 Misc. Rep. 291.

As the covenants in question run with the land and may be enforced by those benefited by them, it follows that the injunction heretofore granted must be continued in so far as it restrains the defendant from erecting the building described in the complaint nearer than twenty-five feet from the present street line.

The security given should, however, he increased to the sum of $1,500.

Let an order be entered, accordingly, with ten dollars costs of this motion.

Ordered accordingly-  