
    John H. Conlen, Respondent, v. Rosanna Rizer and Others, Defendants, Impleaded with Rose Daly and Others, Respondents. Otto Gerdau, Purchaser, Appellant.
    First Department,
    December, 1905.
    Sale of real estate on foreclosure —purchaser relieved because of restrictive covenants running with land not stated in terms of sale — appeal from refusal to allow renewal of motion on new affidavits.
    When the terms of sale of real property on a mortgage foreclosure do not give notice of certain restrictive covenants running with the lands sold, and it is shown that the purchaser had no knowledge thereof, and that such covenants lessened the value of the property, he should be relieved from his purchase. The provision of section 1678 of the Code of Civil Procedure that on such sale if the property be subject to “ the right of dower, charge or lien, that fact must be declared at the time of the sale,” applies to restrictive covenants in the nature of a charge or lien on the premises.
    An order denying a motion for leave to renew a motion upon new affidavits is appealable.
    Appeal by the purchaser, Otto Gerdau, from an order of. the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 12th day of June, 1905, denying the appellant’s motion to be relieved ■ from his purchase at a foreclosure sale in the above-entitled action, and also from an order entered in said clerk’s office on the 21th day of June, 1905, denying , his further motion for leave to renew the aforesaid motion on additional papers. . -
    
      F. R. Minrath, for the appellant.
    
      Francis S. McGrath, for the plaintiff, respondent.
    
      Louis W. Dinkelspiel, for defendants, respondents.
   Laughlin, J.:

The motion was made "upon the ground that the premises were subject to certain restrictive covenants not .specified in the terms of sale and not made known to the purchaser. The lot is one of many together forming the Jacob Harsen tract, so -called. In the year '1873 the executors of Jacob Harsen duly conveyed the entire tract,, subject to restrictive covenants, which are made the basis of the motion and- are as follows: The party of the second part for herr self, her heirs and assigns doth hereby covenant to and with the 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 party of the second part, nor her heirs or 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, "slaughter house, meat shop, tallow chandlery,, -steam engine, smith shop, forge, furnace, brass foundry, nail or other iron factory or any manufactory of glass, gunpowder, starch, glue,- varnish, vitriol, ink, petroleum or turpentine,' or any coopers’, carpenters or cabinet-makers 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, -bpsine.ss or calling-which may be in -anywise dangerous, noxioiis or offensive to the neighboring inhabitants, and that no building shall be erected upon the .said lands or any part of them - which shall- contain any" alley or entrance running through -them for ingress or egress to rear " buildings. "And it is declared that this covenant is a lien and runs with said lands and binds the person^ seized thereof' for the time being.”

The appellant showed by his own affidavit that before bidding he caused inquiry to be made as to the terms of sale and the nature of the lease and party wall agreement subject to which the premises' were to be sold and that he was not aware of these restrictive covenants until informed by counsel whom he had employed to examine the title after he purchased the property. . The only attempted contradiction of these facts was by affidavit showing that the purchaser had been a tenant of the premises for many years which is perfectly consistent with his lack of knowledge as to the legal title. The appellant further showed by his own affidavit that he would not have made the bid on which the property was struck off to him had he known of these restrictive covenants and by the affidavits of experts that the restrictive covenants materially depreciated the market value of the premises. On the other hand, as might be expected, affidavits of experts were presented giving it as their opinion that the restrictive covenants increased the market value owing to the fact that the surrounding lots were subject to like restrictions.

The respondents cite Kitching v. Brown (180 N. Y. 414), which construed this restrictive covenant as authority for their contention that these restrictive "covenants do not constitute an incumbrance. That was a suit in equity to restrain the erection of a modern apartment house. It was held that this was not a breach of the covenant. The decision is of little value as an authority when the question, as here, arises on the marketability of the title. The case of Riggs v. Pursell (66 N. Y. 193) is relied upon by the respondents as authority for the proposition that such restrictive covenants common to a large tract in a residential section and made for the benefit of all are presumably beneficial and that it will not be inferred from the covenant alone that the market value of the premises is depreciated thereby, but that the- burden is on the purchaser who asks to be relieved to show the fact by satisfactory evidence. That was an action to foreclose a mortgage on a leasehold interest and the first foreclosure sale took place before the present Code. There does not appear’to have then been any statutory provision requiring that the terms of sale in such an action should specify the incumbrance subject to which the sale was made. Section 1678 of the Code of Civil. Procedure provides that on judicial sale of real estate “ if the property, or any part thereof, is to be sold subject to the right of dower, charge, or lien, that fact must be declared at the time; of the sale.” This provision of law applies: to such a restrictive covenant Which is in the nature of a charge or lien upon the premises. (Kingsland v. Fuller, 31 App. Div. 314 ; revd. on another point, 157 N. Y. 507. See, also, Ray v. Adams, 44 App. Div. 173; Scripture v. Morris, 38 id. 377; affd., 159 N. Y. 534; Matter of Brennan, 21 App. Div. 236.) It is doubtful, therefore, whether at present the Riggs case is authority for the, proposition that where premises are sold at a judicial sale and it. appears that there was an incumbrance in the nature of restrictive, covenants such as these upon the premises: not. specified, the burden is on the purchaser on . the application to be relieved from the purchase of showing not only the existence and nature of the incumbrance, but that it depreciates the market value 'of the premises. But that question is not directly involved on this appeal and need not be decided for the reason that the affidavits presented on behalf of the purchaser fairly bring the case within the doctrine of the second appeal in Riggs v. Pursell (74 N. Y. 370); where the decision on the first appeal was explained and limited,, and where, the purchaser Was relieved. It appéarsto us that it requires little, if any, evidence dehors the record- to show that such restrictive covenants may materially affect the freedom of use and market valué - of the premises, but if such evidence be required it has' been presented and, therefore, the purchaser should have, been relieved. - '

It is cOnténded on the part of the respondents that'the order denying the motion for leave to renew the motion upon new affidavits was not appealable. A motion- for the réargüment of a previous motion, which would be necessarily confined to the original moving papers, of course is not appealable (Tucker v. Dudley, 104 App. Div. 191) ; but it is manifest that. injustice may be done if the decision of the Special Term in denying the leave of the court to permit the renewal of a motion upon additional papers could never be reviewed, and there is abundance of -authority that such orders are appealable. (Beletsky v. Third Ave. R. R. Co., 44 App. Div. 632; Matter of Bieber, Id. 148; Veeder v. Balter, 83 N. Y. 156, 163; Biggs v. Pursell, supra.)

The original moving papers showed the material facts with respect to the defect in the title and the lack of knowledge on the part of the purchaser in making the bid, and the further fact that the premises with the Restrictive covenants were less valuable than without. The additional affidavits upon which the motion for leave to renew was made amplified the original affidavits and set forth more fully the knowledge of the experts whose opinions were given concerning the depreciation in market value of the property caused by the restrictive covenants.

It follows, therefore, that both orders should be reversed, with a single allowance of ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

O’Brien, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements of one appeal, and motion granted, with ten dollars costs.  