
    ABRAM DU BOIS, Plaintiff and Respondent, v. ALFRED B. DARLING and CHARLES W. GRISWOLD, Defendants and Appellants.
    I. Easements.
    1. Covenant against erecting a building within a certain distance of the front line of premises, and erecting certain specified buildings, among them a livery stable or private stable.
    (a) BREACH OF, WHAT IS.
    1. The erection, on the greater part of the reserved space, of a porch 16 feet 8 inches wide, extending to the front line of the premises, with bay-windows on each side, having their foundations on the ground, and rising therefrom five stories high, and approaching within a few inches to the said front, the same constituting a part of a large building erected, as to this part on the reserved space, and as to the residue on land in the rear, is such breach.
    (6) ABANDONMENT, OR WAIVER, OF COVENANT, OR ESTOPPEL AGAINST ENFORCING.
    1. What will not amount to.
    (a) Private Stable. The bare fact that the common grantor (one of the parties to the original agreement) of the plaintiff and defendant, maintained a private stable on the lot subsequently conveyed tt> defendant, on which he erected the porch and bay-windows above referred to, and which adjoined the lots previously conveyed to plaintiff, and that the stable remained thereon until removed by defendant, without any interference by plaintiff, will not.
    (&) Bay-window on another lot. The mere standing by and seeing an owner of another lot, subject to the same easement, build, without objection, a bay-window overhanging the restricted space, will not.
    (c) Iron balcony built by plaintiff. The fact that the plaintiff himself attached an iron balcony to the front of his house, projecting 3 feet 4 inches over the reserved space, said attachment not being intended as an evasion of the covenant, or made otherwise than with a belief of a right to do so, will not.
    3. What will amount to.
    Acts of plaintiff which are of a character to lead, and have led others to treat the servient estate as if free from the servitude, will, as to those who have acted on the faith thereby induced, that the servitude was abandoned.
    II. Injunction.
    1. MANDATORY.
    
      (a) Restoration on things to their former condition may be effected thereby.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ„
    
      Decided March 3, 1879.
    
      This action was brought to enforce a covenant between two owners of different adjoining pieces of land, situated on the south side of Thirtieth street, between Broadway and Fifth avenue, in'the city of New York. The complaint asks, that the defendants be required and commanded to take down and remove a certain porch and bay-windows, or such portions of their building, as project beyond a line drawn parallel with the southerly side of Thirtieth street, distant six feet southerly therefrom ; and also that the defendants be perpetually enjoined and restrained, Jrom erecting any part of the said building upon, or which shall overreach or overhang, any part of the defendants’ lands, which lie north of said line.
    Both pieces of land were originally owned by Ann Greer, who, with her husband, in 1868, conveyed to the plaintiff his parcel. The defendants’ parcel was first conveyed by said Ann Greer (widow), to Charles L. Anthony, in 1872, and by his executors to the defendants, in 1875. Before the above conveyances were executed, one James W. Anderson was the owner of certain other lands, adjacent to plaintiff’s, on the south side of Thirtieth street, between Broadway and Fifth avenue. Ann Greer and James W. Anderson, as such owners, on the first day of May, 1868, entered into an agreement 'with mutual covenants in writing, whereby among other things, it was mutually covenanted and agreed, “ that they will not at any time hereafter erect any building upon said lands, within six feet of the south side of Thirtieth street,” and further, “ that the covenants and restrictions herein contained, and the right to enforce the same, are attached to and run with the land hereinbefore described, and that any of the parties hereto, and also persons claiming any estate or interest in the said lands under them, or any or either of them, shall" have the right to restrain any person or persons violating this agreement by any proper proceedings or action at law, or in equity, and to recover damages for the violation of the same.” All the deeds were duly recorded and were made subject to and contained the covenants and restrictions contained in the original agreement entered into between Ann Grreer and her husband and James W. Anderson.
    In 1868 the plaintiff erected a dwelling-house on his premises, at an expense of about $50,000, and built the front wall upon a line six feet south of the southerly line of Thirtieth street, according to the restrictions in the agreement.
    In May, 1877, the defendants began to erect a large flat or apartment house on their three most westerly lots and next adjoining the plaintiff’s premises on the east, about seventy-five feet front, and extending to the rear of the lots, and five stories high.'
    The front wall of the building is placed on the same line as the plaintiff’s house. The front windows of the east and west wings of the house consist of bay-windows, and by the plans were to be carried from the foundations to the top of the house. The foundations rested upon the ground, and projected beyond the front line of plaintiff’s building, five feet four inches.
    A porch was erected in the front of the building between the bay-windows, extending six feet beyond the main.line of the building and beyond the main line of the plaintiff’s house. These projections cover about thirty-five or forty feet of the entire front reserved by covenant in front of the building.
    At the time of the commencement of this suit, the bay-windows were carried nearly up to the top of the first story above the basement, but have not been carried higher since the suit was brought.
    There was a judgment at special term, requiring the defendants to remove such portions of the porch and bay-windows as are built beyond the line six feet south of Thirtieth street, and restraining them from erecting any building upon the strip of land between this line and the street. From this judgment the defendants appealed to the general term.
    
      Horace Barnard, attorney, and of counsel, for apr pellants,
    As to the maintenance of the stable extinguishing the whole easement, cited: Washb. on Easements, 58, 59, 632, 657, 658 ; Washb. on R. P. 84; Aet. Dock Co. v. Leavitt, 54 N. Y. 35 ; Corning v. Glould, 16 Wend. 531, 538; White’s Bank v. Nichols, 64 N. Y. 74. As to plaintiff’s balcony extinguishing the easement,—cited: Lattimer v. Livermore, N. Y. Weeldy Dig. May to June, 1878 ; Corning v. Troy Nail & Iron Factory, 40 N. Y. 203 ; Roper v. Williams, Turner & R. 22. As to estoppel by acquiescence,—cited: Washb. on Easements, 661 ; Roper v. Williams, supra; Arnold v. Common, 50 Penn. 361 ; Corning v. Troy Nail & Iron Company, 40 N. Y. 203.
    
      Hutchins <6 Platt, attorneys, and Waldo Hutchins, of counsel, for respondent, urgedI.
    The owners of land may, by mutual covenants, regulate the use of their respective properties, which covenants may run with the land, and bind all subsequent purchasers; and any consideration, however slight, will support this covenant in law and equity.
    II. There is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the filing of the bill. A mandatory order is nothing more than a decree of specific performance, which is every day’s practice in a court of equity, and which is seldom denied unless the remedy at law is perfectly adequate {Kerr on Injunctions, marginal paging, 231-233, and cases cited).
    III. There is a distinction between cases depending on nuisance and those depending on contract. “Where there is a contract, the court cannot attach the same importance to the question, whether the damage is serious or not, as it does in mere cases of nuisance, but the main point is, whether the contract has been broken” (Attorney-General v. Mid Kent Railway Company, L. R. 3 Ch. App. 100-104).
    IY. Though a court of equity has no jurisdiction to compel the performance of a positive act tending to alter the existing state of things, such as the removal of a work already executed, it may, by framing the order in an indirect form, compel a defendant to restore things to their former condition, and so effectuate the same results as would be obtained by ordering a positive act to be done. The order when framed in such a form is called a mandatory injunction. If the act complained of is a breach of an express stipulation, the injunction will issue, notwithstanding the amount of inconvenience to the other party (Kerr on Inj. marginal, 231; Isenburg v. East India House, &c., Company, 33 L. J. Ch. 392 ; Durell v. Pritchard, 1 L. R. Ch. App. 244; Low v. Inness, 10 Jur. N. S. 1037; Martin v. Headon, 2 L. R. Eq. 425).
    Y. This order has been granted and the principle recognized in the courts of our State, in Massachusetts, as also in other States (Corning v. Troy, &c., Factory, 40 N. Y. 191; Linzee v. Mixter, 101 Mass. 512; Rogers’ Locomotive Works v. Erie R. R. Company, 5 C. E. Green, 379).
   By the Court.—Curtis, Ch. J.

The defendants were obligated by the covenant in their deed, not to erect any building upon the lots conveyed to them, within six feet of the south side of Thirtieth street. In violation of this obligation they commenced the erection of a structure five stories in height, with bay-windows and a porch rising from their foundation on the ground the entire height of the edifice, occupying the greater part of the land reserved on the south side of Thirtieth street. The porch was sixteen feet and eight inches in width, extending to the line of Thirtieth street, and the bay-windows approaching it within a few inches.

The plaintiff owning the adjoining house, west of this building, subject to the same restriction, and built in accordance with it, seeks by injunction to prevent this infringement upon the enjoyment of his premises. It is evident that his complaint, that the light, air, and view which he had been accustomed to enjoy on his own premises would be materially diminished by defendant’s building, is well founded.

No question is raised as to the right of the original grantors of the lots to make the covenant in question, for their mutual benefit and that of their grantees.

The defendants insist that there has been an abandonment by.the plaintiff of the restriction. That the Greers, parties to the original agreement, made May 25, 1868, containing this restriction, and at that time the owners of both the plaintiff’s lot and the. defendants’ adjoining four lots, maintained or permitted a private stable on the lots afterwards conveyed to the defendants, and that the plaintiff assented thereto, and allowed it to remain for nine years, until removed by the defendants. __ The evidence fails to show that this stable was one of the class prohibited by the restriction, and even if it had been, there is no evidence of any assent or allowance by the plaintiff that it should remain there. The vested rights of the plaintiff, under this agreement, would not be impaired by reason of the Greers violating one of its provisions, even if ‘they had done so.

The defendants claim that the plaintiff when build-his own house, No. 16 West Thirtieth street, allowed Dr. Bumstead to build a bay-window at No. 22 West Thirtieth, street, overhanging a portion of the restricted six feet, which operated as an abandonment of the agreement. The evidence fails to show any permission or license from the plaintiff to Dr. Bumstead of this nature. The plaintiff testified that he did not make any objection to it. He may have regarded it as not conflicting with the-agreement, or as of no importance. Even if this act of Dr. Bumstead had been a violation of the agreement, the plaintiff, by no act or acquiescence in respect to it, has been shown to have abandoned the restriction.

The claim of the defendants, that the plaintiff saw that they were building in this way, upon the reserved portion of their lots, and suffered them to proceed, and is thereby estopped by his own acts and laches, is not sustained by the evidence, but on the contrary, he appears to have notified the agents of the defendants of his rights, and to have proceeded with all reasonable diligence under the circumstances to enforce them.

The defendants, as a further ground, state the plaintiff has himself built a balcony on the front of his house, overhanging the reserved premises, and does not come into court with clean hands. The proofs show that he has an iron balcony attached to the front of his house, and projecting three feet and four inches over the reservation. There is nothing to show that this construction was an evasion of the covenant, or that it was placed there otherwise than with the belief that he had a right to do so. It has been held that where, under similar circumstances, a balcony was erected, not intended as a mere evasion of the covenant, projecting from the front wall of a house, it was not a violation of a covenant of the same description (Perkins v. Coddington, 4 Robt. 647). The plaintiff is shown to have purchased a lot and built a very valuable house, relying upon this agreement as contributing to his enjoyment of it. He paid an enhanced price as a consideration for the land in consequence. He comes into a court of equity seeking to be protected in such enjoyment. No bad faith is shown on his part, and no intent to evade or abandon the restriction. He has not placed himself by his own acts without the pale of equity, and in view of what the courts have held, is entitled to relief.

The evidence fails to establish that the defendants acted upon belief that the plaintiff intended to abandon his right to the enjoyment of the reservation (Bank of Buffalo v. Nichols, 64 N. Y. 74; Tallmadge v. E. R. Bank, 26 Id. 105; Trustees v. Lynch, 70 Id. 449).

The judgment appealed from should be affirmed, with costs.

Sedgwick and Freedman, JJ., concurred.  