
    Frederick W. Flint, Respondent, v. Mary Charman and Catherine A. Bruce, Appellants.
    
      Deed,—restrictions as to the use of premises for “any business purpose” —an acquiescence in their violation prevents equitable relief—effect of the absence of proof of injury.
    
    Upon the hearing of a motion for a preliminary injunction it appeared that in 1873 the Larchmont Manor Company laid out a plot of land for residence purposes, and conveyed the lots subject to a restrictive covenant that they should not be used for a number of specified trades and employments, including a bar room or a liquor saloon, nor for any noxious trade or business, nor “for any business purpose whatsoever.” This covenant ran with the land, and the deeds from the Larchmont Manor Company declared that the covenant should be inserted in all future conveyances. The plaintiff built a cottage upon lands which were conveyed to him by grantees of the Larchmont Manor Company in the summer of 1894. In February, 1895, the defendant purchased her land from grantees of the same company, and erected a hotel which was used as such in the summer of 1895, and the defendant was preparing to open it for the year 1896 when she was enjoined at the suit of the plaintiff from using her property for “ any business purpose .whatsoever, and particularly for the purpose of a hotel, boarding house, bar room, liquor store, or for the sale or disposal of liquor.”
    Since 1873 at least four hotels or boarding houses had been kept upon the tract of the Larchmont Manor Company without objection by that company or any one, and one of which, as well as a livery stable, with the consent of the Manor Company, and it appeared that the plaintiff’s property had probably been benefited by the construction of the hotel, to be used as an annex to which the plaintiff had in 1895 offered to sell his property to the defendant, and that the plaintiff was present, knew while the hotel was being built of the defendant's intention to use her property for hotel purposes, and made no objection to her ro doing.
    
      Held, that while the injunction was sustainable so far as it enjoined the defendant from using her- property for a bar room or for the sale or disposal of liquor, it must be reversed so far as it enjoined the defendant from keeping a boarding htfuse or hotel;
    That under section 603 of the Code of Civil Procedure an injunction of this kind, in an action like the present, could only be granted where it appeared that the continuance of the act complained of during the pendency of the action would produce injury to the plaintiff;
    That inasmuch as in the present case, so far as inferences could be drawn from the facts presented, it appeared that the hotel was a benefit to the plaintiff, and as his act in offering to sell to the defendant was susceptible of the inference of his consent to the use by the defendant of her own property for a hotel, such use would not be enjoined;
    
      That the rule was well settled that long acquiescence in a state of things, which a party afterwards seeks to enjoin, prevents him from obtaining relief against it; ■ ...
    That the evidence tended to show that the Larchmont Manor Company and -its grantees generally had practically construed the expression in the covenant which forbade the use of the tract “for any business purpose whatsoever ” so as' to exclude from its operation the business of a boarding house or private hotel, and had so slept upon their rights, by apparent acquiescence in repeated violations of the covenant, that they were not now entitled to invoke the equitable . power of the court to enjoin an owner of property, who had acted upon the assumption that the restriction was. no longer to be observed, from making such use of his property;
    That the court would also consider the fact that, while the plaintiff had suffered ho loss, the defendant would, by the enforcement of the covenant, suffer a very large loss, and would, in view of these facts,, exercise its discretion in dismissing the bill in equity and leave the plaintiff to pursue his legal remedy.
    Appeal by the defendants, Mary Oharman and another, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of May, 1896, as' resettled by an order entered in . said clerk’s office on the 22d day of May. 1896, granting the plaintiff’s motion for an injunction pendente lite; also from an order entered in said clerk’s office on the 7th day of May, 1896, granting a preliminary injunction against the defendant Oharman, restraining her from using certain premises, described in the complaint as owned by the defendants, for any business purpose whatever.
    
      Everett P. Wheeler, for the appellants.
    H. T. Dykman and Francis M. Scott, for the respondent.
   Brown, P. J.:

; The parties to this action own adjoining property in the.tówn of Mamaroneck, Westchester county, which was originally a part of a large tract of land owned by the Larchmont Manor Company, and by that corporation laid out in plots and sold for residential purposes.-

* The. plaintiff huilt a cottage upon his lands in the spring and Summer óf 1894. The defendant purchased her land in February,. 1895. The conveyance to neither party was from the Manor Company, but from its grantees. Immediately after her purchase, the defendant' caused to be erected on her lots a four-story frame building 150 feet long, which she used and-occupied during the summer of 1895 as a hotel, and which at the time .of the commencement of this action she was preparing to open and use as a hotel during the summer season of the present year.

The orders appealed from enjoin and restrain the defendant from using her property for “ any business purposes whatsoéver, and particularly for the purpose of a hotel, boarding house, bar room, liquor store, or for the sale or disposal of liquor.”

These orders have their support in a covenant inserted in all the deeds from the Manor Company whereby each grantee of said company covenanted with it and its successors or assigns that the premises conveyed should not be used or occupied for the erection or maintenance of any slaughter house, or any of a number of other specified trades, including a bar room, lager beer, saloon, restaurant, ale house, liquor saloon, “ or any erection known as nuisances, or any noxious or dangerous use, purpose, trade, business or establishment, or for any business purpose whatsoever,” and it was expressly declared in the deeds from the Manor Company to its grantees that this said covenant should run with the land, and be inserted in all future conveyances and other instruments whereby the title to the said land was transferred or affected.

" The defendant, by her answer in the action, admits she purchased her property for the purpose of maintaining and using the same and the buildings thereon' for a private hotel or boarding house, and that she used the same for such purpose during the year 1895, and intends to so use it in the future. She admits that she sold liquor to the guests at said hotel, but denies that she used the premises for a restaurant or bar room. These admissions clearly bring the case within the letter of the covenant, and establish a prima facie breach thereof. But, notwithstanding these admissions, we are of the opinion, for reasons now to be stated, that the orders, so far as they restrain the defendant from using the premises for the business of keeping a hotel or boarding house, must be reversed.

It appears that the plaintiff erected his cottage in the summer of 1894. He has resided for several years in a cottage' on another part of the manor tract,, and does not personally occupy the premises adjoining the defendant. It does not appear that the value of his property was depreciated by the defendant’s hotel during the year 1895. On the contrary, the defendant swears, and the statement is not contradicted, that the plaintiff knew of her intention to use her property for hotel purposes, and never made any objection to her so doing; that he was present in the building before its completion, and was there on several occasions during the summer of 1895; that he was there on the occasion of a yaclitmen’s ball in August, and talked with defendant and was apparently pleased and interested in what was going on, and that subsequently he offered to sell his cottage to the defendant to be'used as an annex to the hotel. In the early part of the present year he leased the cottage to Hr. W. B. Hanney, who swore in an affidavit read upon the motion that the proximity of the cottage to the hotel was an’inducement to him to hire it.

The Code of Civil Procedure provides (§ 603) that in an action of this character, where the right to an injunction depends on the nature of the complaint, an injunction pendente lite may be granted where it appears that the continuance of the act complained of during the pendency of the action would “ produce injury tó the plaintiff.”

It is very clear from the facts that I have stated that the plaintiff is not injured by the defendant’s hotel. So far as we can be permitted to draw inferences from the facts, he has been benefited by it. To some extent at least it has aided in procuring him a tenant for his oWn property.

Being a resident upon another part of the tract, and offering to sell to the defendant the property adjoining her hotel to be used in com nection therewith, is certainly susceptible of the inference of a consent to the use by the defendant of the property for such purpose, and if that be a violation of the covenant it does not lie with the plaintiff to complain of an act which he was thus willing to aid and participate in.

Suppose he had sold the cottage to the defendant to be used as an annex to the hotel, could he as an owner of a lot on another part of the tract after such an act successfully maintain an action to restrain such use ? It appears to us that he could not, and in face of the uncontradicted testimony to which I have referred we think that he did not make out a proper case for a temporary injunction. (Power v. Village of Athens, 19 Hun, 165 ; Bronk v. Riley, 50 id. 489.)

But there is another serious question presented upon the papers before us.

The rule is well settled that a person who seeks to enforce a covenant of the' character invoked by the plaintiff mjist permit no such breach of the stipulation as will frustrate all the benefit that would otherwise accrue to the other parties to the agreement. (Moore v. Murphy, 89 Hun, 175.)

Long acquiescence in a state of things which he afterwards seeks to enjoin will prevent him from obtaining the desired relief. (Matter of Lord, 78 N. Y. 109; Great Western Ry. Co. v. Oxford, Worcester & Wolverhampton Railway Co., 3 DeGex, M. & G. 341; Peek v. Matthews, L. R. [3 Eq.] 515; Roper v. Williams, Turner & Russell, 18, 22, 23.)

In Great Western Ry. Co. v. Oxford, etc. (supra), Lord Turner said: Parties who have lain by and permitted a large expenditure to be made, in contravention of the rights for which they contend, cannot call upon this court for its summary interference. The jurisdiction to interfere is purely equitable and it must be governed by equitable principles. One" of the first of those principles .is that parties coming into" equity must do equity. * * * If parties cannot come into equity without submitting to do equity, a fortiori they cannot come for the summary interference of the court when their conduct before coming has been such as to prevent equity being done.”

This rule will commend itself to the judgment of all fair-minded persons. Why should a court of equity interfere to enforce a covenant in favor of a man who, with knowledge that it was being violated, had failed to utter the remonstrance that would in all probability have given him the ¡uotection he asks> and have saved the other party from the expenditure of large sums of money.

Where a man neglects to speak to protect his own rights, a court of equity is not bound to aid him to escape from the situation that his silence has aided in creating. It .will under .such circumstances ordinarily leave him to pursue his legal remedy and recover such pecuniary damages as he may be able to show in a court of law that he has suffered. - ■ In this case it appears that the Manor Company laid out its tract of land and began the sale of the property, subject to the 'restrictions of the covenant, in 1873. Since that' date there have been kept and maintained, Upon the property at least four hotels or boarding houses. One, at least, of- these,, was with the express consent of the Manor Company, and all existed without com■plaint, so far as the motion papers inform us, of any resident on the tract. A hoyse railroad was constructed and operated upon" one of "the streets from the railroad station to the sound, A livery stable was kept and. maintained upon one of the. plots, with the express consent of the Manor Company, and not only without the.dissent of any, but was patronized by many, of the residents. During the year 1894 the defendant kept and maintained a boarding, house almost directly opposite her present hotel, and" during the year 1895, as has already been stated, kept the Victoria Hotel with the knowledge and apparent approbation of the plaintiff and other residents •on the tract. It was apparent to- every one, during the process of the construction of the building by the defendant, that it was not. to be a private residence; but was to be used as a hotel, and yet no one protested or complained until this action was .commenced.

The-learned judge who heard this case at Special Term says in his. opinion that it is' proven that she (the defendant) built in defiance 'of notice from one of the residence owners on .the tract.” The record before us fails to sustain that statement. There is no affidavit which contains such an assertion: In addition to. the boarding houses and 'horse railroad mentioned, there.-were also erected and maintained on the tract, without protest from any person, so far as the case informs us, bath houses and club houses. We-do not desire! to be understood as deciding on this appeal that the facts herein referred to establish conclusively a defense, to this, action. Bn.t wé do -decide that, standing uncontradicted and unexplained as they do in the record before ns, they would permit and sustain either One of two' conclusions, viz.: (1) That the Manor Company and its grantees had practically construed the -expression in the covenant, “ any business purpose,” to exclude -the business of a boarding house or private hotel; and (2) that the Manor Company and its grantees had so slept upon their rights, and: apparently acquiesced in repeated violations of the covenant, that they are not now entitled to invoke the equitable power of the court to enjoin an owner of property" who has acted upon the assumption that the .restrictions are no longer to be observed. . ; .

In considering the question whether the. writ of injunction should be issued in a case of this kind and under such circumstances as áre here disclosed, the court cannot be unmindful of the great injury that will be caused to the defendant to be restrained from the intended use of her property. And' where it appears, as it does here, that the plaintiff has suffered no pecuniary loss, that others are and have been permitted for a long time to do the precise thing now complained of, and that the pecuniary loss to the defendant to flow from the enforcement of the covenant is to be great, the discretion of the court is well exercised in dismissing the bill and leaving the plaintiff to pursue his legal remedy. It will be for the trial court, after hearing all the testimony, to draw the proper conclusion and decide the question. It is sufficient for us to say that a temporary injunction was improperly granted.

The orders, so far as they enjoin the defendant from the keeping of a boarding house or hotel, must be reversed, with ten dollars costs and disbursements to abide the event, and in other respects are affirmed.

All concurred.

Order, so far as it enjoins the defendant from keeping a boarding house or hotel, is reversed; so far as it enjoins her from using her property for a bar room, liquor store, or for the sale or disposal of liquor, it is affirmed, with ten dollars costs to abide the event.  