
    Fleurette B. Gallon, Respondent, Appellant, v. Charles Hussar and Others, Appellants, Respondents, Impleaded with William Fisher and William H. Cromwell Realty Company, Defendants.
    Second Department,
    May 5, 1916.
    Real property — restrictive covenants — prohibition of offensive trades not violated by taking boarders — restrictions against carrying on business — when restriction violated by keeping store — equity — landowner cannot complain of violation of which, she herself is guilty—building line restriction — damages—when landowners not' jointly and severally liable—change in character of locality by municipal improvement.
    Restrictive covenants in a deed prohibiting dangerous, noxious, noisy and objectionable business, and restricting dwelling houses to the use of two families, are not violated where an owner takes boarders, and this is so, even though it be shown that the boarders congregate about the premises, play games and are noisy. Redress for such offenses must be had in an action other than one to enforce said restrictions.
    While a restrictive covenant forbidding the carrying on of noxious or objectionable business is not violated where a householder conducts a store in a portion of his building, yet where covenants also require that the building shall be a substantial dwelling, to cost not less than §1,200, and that no store, factory or place of business whatever shall be built upon said premises, there is a violation where an owner maintains a store on his premises.
    Where a plaintiff herself has violated a restrictive covenant, setting back the building line twenty feet, she will not be heard in equity to . complain of a similar violation by another owner.
    In a suit against several landowners holding under separate deeds to recover damages for the violation of various restrictive covenants, the judgment should not charge the defendants jointly and severally as joint tort feasors, for each is responsible only for the damage which he has caused.
    Where the court has erroneously held defendants jointly and severally liable, audit is impossible for the appellate court to apportion the damages through lack of proof appearing in the record, a new trial will be granted.
    Where the entire character of a locality has been changed by the fact that a large number of laborers employed in the construction of municipal water works work and live in the vicinity, the court should not, while the situation continues, award substantial damages for the breach of restrictive covenants, nor can individual landowners be held for the depreciation of rental value caused by a change in the character of the locality so caused.
    Thomas, J., dissented in part.
    Cross-appeals by the plaintiff, Fleurette B. Gallon, and the defendants, Charles Hussar and others, from a judgment of the Supreme Court in favor' of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of April, 1915, upon the decision of the court after a trial at the Westchester Special Term.
    
      Clinton T. Taylor, for the plaintiff.
    
      Eben H. P. Squire, for the defendants.
   Mills, J.:

These are cross-appeals by all parties from a judgment in an action in equity, entered in Westchester county April 20, 1915, upon a decision rendered at the Westchester Special Term for Trials.

While the decision and judgment were generally in favor of the plaintiff, yet the plaintiff has appealed from so much thereof as fixed the amount of incidental damages allowed, and from the part thereof which suspended for a certain period and upon certain terms the operation of the injunction granted.- The defendants appealed from the entire judgment.

The general locality involved is well known, being that of the new Kensico reservoir, which the city of New York is constructing some few miles north of White Plains. The construction includes a very large dam in the neighborhood of the locality involved herein, and is to result in an immense reservoir for the storage of water to be brought principally from the new Catskill source of supply.

The action was brought by plaintiff, the owner of a certain lot in a restricted tract known as Kensico Manor, situated some three or four miles north of White Plains and mainly on the east side of the Harlem railroad, upon which lot she has erected two dwelling houses, in one of which she resides. The object of the action is to restrain the defendants, owners of other lots in the tract, from violating certain of the restrictions, and incidentally to recover damages to plaintiff’s property caused by defendants’ past such violations. The complaint makes some ten different owners of different lots parties defendant, charging some with the violation of certain restrictions and others with the violation of others.

The tract was first laid out and mapped into building lots by the Kensico Development Company as early as 1892. It contained about nine hundred lots, mostly only twenty-five feet wide each, and several streets as designated upon the map then filed.

In 1910 New York city took, by condemnation proceedings, approximately one-quarter of the tract for the said Kensico reservoir now being constructed by its contractor, and including very much other territory. Up to that time very few of the lots, not exceeding twelve to twenty, had been built upon. In general the streets were only marked out, very little grading and practically no work having been done upon them. Indeed it is quite apparent that the development had been practically a failure up to the time of the taking by the city.

The development company, in its conveyances of lots out of the tract, uniformly inserted in its deeds, including those under which all parties to this action hold, certain restrictions which may be summarized and abstracted thus: (a) Against any dangerous, noxious, noisy or objectionable business, trade, manufactory, profession or calling; (b)-against the manufacture, sale or storage of alcoholic liquor, wines, ale, beer or cider; (c) that all dwellings must be set back at least twenty feet from the street on which they front; (d) that no buildings other than substantial dwellings, to cost not less than $1,200, and the necessary outbuildings, shall be erected;' (e) that no dwelling shall be occupied by more than two families; and (f) that no store, factory or place of business whatever shall be built upon said premises or any part thereof.

The decision finds violations by the defendants as follows, viz.: (a) The twenty-foot set-back restriction •— by the defendants Hussar, Thomas J. Higgins, Coombs and Di Scipio; (b) the business use (principally stores) — by defendants Charles Hussar, Frazer, Thomas J. Higgins, Coombs, Di Scipio and Lo Bue; (c) the sale of beer —by defendants Charles Hussar, Sweeney, Frazer, Coombs, Di Scipio, Lo Bue, Versen and Fisher. (Note. It would seem as though this particular violation was nearly universal); (d) no more than two families in one dwelling house — by defendants Charles Hussar, Sweeney, Di Scipio, LoBue and Fisher; (e) taking boarders—if that be a violation as the learned trial court held — by defendants Charles Hussar, Higgins, Di Scipio, Sweeney, Versen and Fisher; and (f) buildings costing less than $1,200 — by defendants Frazer and Thomas J. Higgins.

So far as the doing of the acts so found is concerned, the very voluminous record appears to warrant in general the findings as made; and this much does not appear to be seriously disputed by defendants’ counsel, except that he claims that the evidence as to the sale of beer upon some of the premises is insufficient; but I think that the evidence indicates that the sale of beer is practically a universal occupation in the locality.

As to the meaning of the restrictions, the learned counsel for the defendants presents two contentions, viz.: (a) That only dangerous, noxious, noisy or objectionable business is prohibited by the restrictions, and that they do not prohibit the conduct of an ordinary store; and (b) that taking boarders in a dwelling house is not prohibited.

Upon what theory the taking’of boarders in and by a private family, in their dwelling house, can be deemed to be a violation of the restrictions specified, as the trial court evidently has decided, I do not understand. The finding that such business, as conducted by the defendants, is a noxious, noisy and objectionable business, is a mere conclusion unsupported by any specific facts found. In practically every suburb of New York city, such as Hount Vernon, New Rochelle or White Plains, in which nearly all of the newer sections have quite as stringent restrictions as these, the taking of boarders in private houses in such sections has been carried on for years, without any question of its violating such a restriction having been even raised. The only authority cited by plaintiff’s counsel, which appears to be at all pertinent, is the recent case of Kalb v. Mayer (164 App. Div. 577). In that case the restriction was expressly against use for a “boarding house,” and to use for the purposes of a “ private dwelling house.” Even then the opinion, written by Hr. Justice Thomas, pertinently said: “I do not mean to suggest that the word family in its broad sense may not include persons boarding or lodging in the house, but I consider that the definition cannot be widened to include several distinct families, combined only for economic purposes. But if defendant elects to term his co-operating families boarders or lodgers, he offends, I think, the restriction against a boarding house.” (164 App. Div. 579.)

The counsel for the plaintiff contends that, even if the keeping of boarders may be ordinarily so conducted as not to annoy a residential neighborhood, and if, when so conducted by a private family, such a business would not violate these restrictions, yet such business, even when conducted by a private family in a dwelling house, would violate the restrictions if it was conducted in a noisy manner, e. g., if the boarders were suffered to congregate about the premises playing games and being noisy generally. It does not seem to me that such a construction is practicable or permissible. If so, then the conduct of a private dwelling by noisy actions of the occupying family might be deemed a violation of these restrictions. They are not designed to secure any such result, and such conduct must be suppressed by resort to other proceedings than an action to enforce such restrictions. Neither of the cases cited by the counsel for the plaintiff in support of this contention seems to me to sustain it. Thus, in Dieterlen v. Miller (114 App. Div. 40) the decision was merely that some kinds of business, which were not nuisances at common law, might be forbidden by a restriction against “ any noxious, offensive or dangerous trade or business; ” and in Rowland v. Miller (139 N. Y. 93) the decision was merely that an undertaking establishment with a morgue was within the prohibition of such a restriction. Neither of those decisions cited by plaintiff’s counsel indicates that the taking of boarders can be deemed a “ noxious or noisy or objectionable business,” even because some of the boarders do not act the part of gentlemen or even that of law-abiding citizens.

The decision herein, that the keeping of boarders in a dwelling house upon one of these lots is a violation of the restrictions, appears to me to be unwarranted.

As to the contention of defendants’ counsel that the restrictions should not be construed so as to prevent the conduct of a general store in a dwelling house occupied by no more than two families, it is to be noted that the restrictions here are not to a “private dwelling,” as in the Kalb Case (supra), but are to “substantial dwellings,” not to be “occupied by more than two families.” The restrictions are not by their express terms clear upon this point.

It is plain, I think, that the mere keeping of a general store cannot be classed as the carrying on of a dangerous, noxious, noisy or objectionable business. No case cited by plaintiff’s counsel appears to me to warrant any such conclusion. The point decided in Luhman v. New York, Westchester & B. R. Co. (81 Misc. Rep. 537; affd., 163 App. Div. 964) was merely that a railroad was a structure other than a private residence. In the Rowland Case (supra) it was held that the business of conducting an undertaking establishment with a morgue was a violation of the restriction prohibiting the carrying on of any business “ injurious or offensive to the neighboring inhabitants;” but I think that the reasoning of the opinion in that case indicates that the conduct of an ordinary store would not have been deemed prohibited by the restrictions there. The Dieterlen Case (supra) merely reasserts the doctrine of the Rowland case. In Simons v. Mutual Construction Co. (132 App. Div. 719) the restriction was expressly against a bakery, and that disposed of the case.

The restrictions here, however, provide that “no store * * * whatever shall be built upon said premises or any part thereof; ” but there is no restriction that no store business shall be conducted upon the premises. The counsel for the defendants appears to contend that a restriction against building a store cannot be held to be a restriction against carrying on a store business in a dwelling house otherwise used for residential purposes. It was recently held by this court, Mr. Justice Putnam writing, that such restrictions are not to be enlarged or extended by judicial construction; and that, therefore, a restriction against a garage upon premises which are to be used only for residential purposes is not violated by a lean-to structure at one side of the dwelling, in which the owner keeps his automobile. (Sullivan v. Sprung, 170 App. Div. 237.)

By parity of reasoning it would seem that the conduct in a part of a dwelling house of such an inoffensive business as a store, law office, physician’s office or the like would not violate a restriction against “dangerous, noxious or noisy or objectionable business.” The respective covenants here do not contain, as they did in the Sullivan Case (supra), any express declaration that the buildings shall be “'private houses,” as in Barnett v. Vaughan Institute (119 N. Y. Supp. 45; affd., 134 App. Div. 921; 197 N. Y. 541), wherein Mr. Justice Thomas, writing at Special Term, (his opinion being adopted by this court), held that a covenant that the buildings shall be “ first-class private houses ” was violated by using such a house as a private sanitarium for the treatment of many people for nervous diseases. Apparently in that case the use of the word “private ” was regarded as controlling. Even so, I do not think that such covenant would be construed so as to prevent a physician taking a few patients in his own house for treatment. In the case of Goodhue v. Pennell (164 App. Div. 821) this court, Mr. Presiding Justice Jbnks writing, regarded the word “private ” as controlling, and, therefore, as forbidding a hotel business, even in a building constructed as a dwelling house. Also in that case the covenant was against the “erection,” and not in terms against the use; and yet this court held that the restriction must be construed not only to prevent the erection of buildings in form different from that of a private dwelling house, but so as to prevent the use of the buildings for purposes other than private dwelling houses.

It would seem, therefore, that aside from the first sentence of these restrictions, which prohibits any dangerous, noxious or noisy or objectionable business, the covenants which restrict the use to “ substantial dwellings,” to be occupied by not more than two families, and no store • to be built, in effect restrict against the conduct of a store in one of. the dwelling houses. Therefore, while the word “private” is not used in these restrictions, I think that they were properly construed by the learned court at Special Term as prohibiting the conduct of any store in any of the dwelling houses, although I do not think that the first sentence of the restriction, which prohibits any dangerous, noxious, noisy or obj ectionable business, standing by itself, should be so construed.

As to the twenty-feet set-back restriction, defendants’ counsel claims that the undisputed evidence shows that plaintiff herself has substantially violated that restriction by erecting one of her houses within about ten feet of the side of Hallandale avenue, upon which it fronts, and a privy within twenty-two feet, and a chicken coop within seven feet, when the restrictions require such outbuildings to be sixty feet back.

There appears to me to be no. dispute about the facts as to those locations with reference to the street lines as laid down upon the map by which all parties took their deeds. It appears that that street has not been worked, but that merely a dirt road some eighteen feet wide has been used within its limits; whereas the street is fifty feet wide by the map. The line of the dirt road is shown by plaintiff’s Exhibit 19. The counsel for the plaintiff contends that this actual opening of the dirt road constituted a change in the location of Hillandale avenue, but the evidence indicates nothing more than that in advance of the working of the street to its full width such narrow roadway was opened by actual use. Indeed, that appears to be the condition of the streets in the tract generally, except Broadway, as the photograph exhibits indicate.

The plaintiff, having thus herself violated the set-back restriction, is not entitled to equitable relief against her neighbors for violating the same. Therefore, finding of fact IX, to the effect that plaintiff has not violated the restrictions, is contrary to the evidence so far as the set-back restriction is concerned, as the evidence clearly establishes that she has substantially violated that and is still doing so.

The decision finds that all the violations of the restrictions by said defendants have caused the rental value of plaintiff’s premises to be decreased $10 a month from the 1st day of August, 1910, and that the defendants are jointly and severally liable to the plaintiff for the amount of such diminution up to the time of the entry of the judgment. Judgment, therefore, was entered in favor of the plaintiff for the aggregate such amount, with interest thereon up to the date of the entry of judgment, amounting in all to the sum of $629.61. Probably the damages were allowed against all the defendants jointly and severally upon the theory that, all being quasi wrongdoers, each was liable for the entire wrong, it being impossible to apportion to each one the part of the general resulting damages due to his wrongful act.

It seems clear that such is not the correct rule of damages m a case like this, where the gravamen of the action is the breach by each defendant of one or more of the restrictive covenants. The learned counsel have failed to cite any authority upon the question. Obviously the general rule of the joint and several liability of tort feasors, whose several wrongful acts have contributed to the general harmful result, is not applicable because this is a case of breach of covenant. It is well established even, that in the case of wrongful acts by different persons, not based upon negligence, or perpetrated with a common design, such as the pollution by each of the waters of a stream, an action in equity for an injunction, and incidentally for damages, may be brought against all such persons, but that in such action each one can be held liable only for the damages caused by his wrongful act — that is, his own pollution of the stream. (Chipman v. Palmer, 77 N. Y. 51; Warren v. Parkhurst, 105 App. Div. 239; affd., 186 N. Y. 45.)

In case of a trespass by cattle of several owners, each owner is liable, not for all the damage done, but only for that done by his own cattle; and, if it be impossible to prove the part of the general damage which the cattle of each owner did, it may be presumed that all the cattle did equal damage and the damages assessed against the several owners in severalty upon that basis. (Wood v. Snider, 187 N. Y. 28.)

It may well be that in such a case as this the violation proven against a certain defendant by itself would very little lessen the rental value of plaintiff’s premises-, whereas the violation proven against another defendant, for instance by maintaining a saloon, might very seriously lessen such rental value. There would seem to be little right or equity in holding the former liable for the damage done by both violations. I conclude, therefore, that the rule of damage adopted by the learned trial court was erroneous, but whether or not that be so, it would seem that the amount of the total damages to plaintiff’s property must have been increased in the judgment of the trial court by the decision that the keeping of boarders was a violation, and that the plaintiff was in a position to recover damages for injury to her property caused by the violation by defendants of the set-back restriction. I perceive no method of ascertaining from the decision or the evidence the amount of damages, if any, to the rental value of plaintiff’s premises from the violations of the restrictions against (a) liquor and beer; (b) occupation by more than two families; (c) dwellings costing less than $1,200 each; and (d) business such as stores and barber shops, or the amount of damages caused by such violations by each defendant. It would seem, therefore, that it is impracticable tti attempt to modify the decision and judgment and to affirm the latter as modified.

Moreover, if since 1910, when the city began its reservoir work, the rental value of plaintiff’s premises as residential property, used in accordance with the restrictions, has been substantially diminished by reason of the conditions in the locality, it does not seem to be well established by the record that any substantial part of such diminution in rental value has been due to the violations by these defendants. The conditions of boarding houses for all sorts of laborers, stables, hospital, pest-house, commissary (i. e., store, restaurant and saloon combined), incident to the city’s work, all for the accommodation of a thousand laborers of all races and kinds, largely situated upon the part of this very ‘ ‘ Kensico Manor ” tract, which part was condemned and taken by the city, all combined to present such a disagreeable neighborhood to a strictly villa residential locality, that it is a matter of pure speculation to determine that the depreciation in the rental, value of plaintiff’s premises would not have been just as great had none of defendants’ violations existed. It is manifest that the reservoir work, with its incidentals, has practically put the Kensico Manor tract out of use as a good class of residences, and will continue to do so as long as that work is going on. The learned trial justice recognized this and, therefore, and wisely as I think, upon certain terms suspended the operation of the injunctions granted until the completion of the city’s work. I think that he might well have gone further and allowed no substantial damages against the defendants until that time. The situation of the locality due to the city’s work is most remarkable, constituting, aside from any action of the defendants, a complete temporary change of character. Very likely, if such change were permanent, it would in equity be deemed sufficient to render these restrictions nonenforcible as being practically obsolete. It does not seem to me at all equitable to hold these defendants liable to the plaintiff for the damages which have resulted to the rental value of' her premises from that general change in the character of the locality. Indeed, it seems to me most unreasonable to make these defendants pay this plaintiff for the diminution in the rental value of her premises while the city’s work is going on. The doings of these defendants evidently constituted a mere drop in the bucket compared with the disagreeableness caused by the city’s work. Ho doubt the situation in this ■locality resulting from that work is very much the same as the result to the neighborhood of the Hillview reservoir in Yonkers during its construction by Hew York city. There the commissioners allowed a landowner, part of whose tract had been taken, $75,000 for damages to the rest of the tract during the period of construction. Upon motion at Special Term, to confirm, it was held that the city was not liable for such damages for temporary inconvenience while the work was going on. (See Matter of Board of Water Supply [Hill View Reservoir], 73 Misc. Rep. 231, 235-237.) The city appealed upon another point; but this court affirmed without opinion (151 App. Div. 885); and the Court of Appeals likewise (206 N. Y. 680).

I recommend, therefore, that the judgment appealed from be reversed and a new trial granted, costs to the defendants, appellants, to abide the event.

Cabe, Stapleton and Putnam, JJ., concurred; Thomas, J., concurred except in the suggestion that there could be a suspension of the injunction.

Judgment reversed and new trial granted, costs to the defendants, appellants, to abide the event.  