
    William H. Smith, Plaintiff, v. Helen Moles and Another, Defendants.
    Supreme Court, Westchester County,
    July 31, 1927.
    Deeds — restrictive covenants — judgment restraining violation entered on default is modified to conform to restrictions.
    The plaintiff recovered a default judgment in an action to restrain the defendant from erecting a garage in violation of a covenant which prohibited the erection of a garage within seven feet of the property line. The judgment is broader than the restrictions contained in the deed in that it restrains the erection of a garage upon the premises even though it does not violate the restrictive covenant. While this is a motion to open a default the court directs that the judgment be modified to conform to the restrictions.
    Motion by defendant to open a default judgment and to modify judgment.
    
      John J. Kinney, for the plaintiff.
    
      Peirce & Hopkins, for the defendants.
   Lynch, J.

The defendants’ property was restricted by a covenant in the deed prohibiting the building of a garage within seven feet of the property line. An attempt was made in 1919 to erect a garage upon the premises in direct violation of this restriction. An action was brought to enjoin its erection. The defendant, after filing an answer, was advised that the case was defenseless, and thereupon by consent suffered a default judgment to be entered.

The judgment, however, was broader than the restrictions contained in the deed, and forever restrained the erection of a garage upon the premises, even if it was so located as to comply with the restrictions. This, obviously, the court never intended to do, and, if it did so intend, it was without power to decree. While the motion is in the nature of an application to open a default, yet the facts establish a clear case requiring the modification of the judgment to conform to the restrictions.

The motion to open the default is denied, but the motion to modify the judgment as above indicated will be granted. Submit order on notice.  