
    David Korn, Plaintiff, v. Georgine Campbell, Defendant.
    (Supreme Court, New York Special Term,
    December, 1906.)
    Injunction — Who and what may be enjoined — Breach of contract — Covenants as to use of premises.
    Where adjoining properties, upon which are private residences, are subject to the covenants in a deed, executed more than thirty years ago, not to permit any trade or business in anywise noxious or. offensive, but to use the premises for private residences only, the owner of one of the properties, in an action to restrain the adjoining owner from making such alterations as will enable him to let his building for business purposes, is entitled to judgment, where the evidence fails to disclose any change in the immediate neighborhood which would defeat the object and purpose of the covenant.
    Action by an owner of real estate to restrain the violation by an adjoining owner of a restrictive covenant in a deed affecting both properties.
    Albert T. Sharps, James L. Bishop, and James Frank, for plaintiff.
    David B. Ogden and Francis C. Huntington, for defendant
   Newburger, J.

Plaintiff is the owner of Mo. 924 Madison avenne, while the defendant is the owner of Mo. 922, and the buildings erected upon the premises are known as private dwelling-houses. The defendant is about to alter the building Mo. 922, and has filed with the building department ' plans which contemplate such changes as to permit the lower part to be used for stores, and the first floor above the basement for office purposes, and, as defendant testified, the alterations were for the purpose of letting the building for business purposes. This action is brought to restrain the defendant from making such alterations as being in violation of a restrictive covenant imposed upon said property. James Lenox, on the 10th day of August, 1870, conveyed to one Lalor premises on the northwest corner of Madison avenue and Seventy-third street, being 195 feet on the northerly side of Seventy-third street from the corner of Madison avenue and 102 feet 2 inches on the westerly side of Madison avenue, from the corner. The deed contained a covenant against nuisances which provided, among other things, “ not to permit any trade or business whatsoever which may be in anywise noxious or offensive to the neighboring inhabitants, but will use, or suffer the said premises to be used, for the erection of first-class private residences only.” Subsequently the premises were divided, and thereafter dwelling-houses were erected, and are now standing and used as private residences, with the exception of three properties farther west bn Seventy-third street which have been torn down and are now occupied by other private houses. The property of the plaintiff and defendant is still subject to the covenants in the deed from Lenox to Lalor. See Raynor v. Lyon, 46 Hun, 227. It has been repeatedly held that courts of equity will enforce such covenants, unless there has been such a change in the character of the neighborhood as to defeat the object and purpose of the agreement, and to render it inequitable to deprive such owner of conforming his property to that character. It appears from the stipulated' facts (Exhibit 3) that all the property upon hoth sides of Seventy-third street and Seventy-fourth street, from Fifth avenue to Park avenue, is used for private residences only, and the evidence wholly fails to disclose any change in the immediate neighborhood. The contention of the defendant that by reason of the change of the motive power of the railroad on Madison avenue the property cannot be as profitably sold or rented is not borne out by the evidence.

Judgment for plaintiff.  