
    MARY V. AMERMAN, Respondent, v. BERTHA DEANE, Appellant.
    
      Equitable action.—Injunction.—Measure of damages in.
    
    Each of the parties to this action was the owner of lots and buildings upon them in a block in the city of New York. The original owner of the block sold and conveyed it to different persons in various portions. In each of the original conveyances was a covenant by the grantee for himself and his assigns, that neither he nor they would erect, suffer or permit upon the premises conveyed, any tenement house, and it was agreed in the said conveyances that this covenant should run with the land. The parties to this action held title to their respective premises under some of those conveyances. The defendant built upon his lot a tenement house, and had maintained it as such, to the time of the commencement of this action. Held, that under the facts found by the trial judge, the plaintiff was entitled to an injunction restraining the defendant from maintaining the tenement house he had erected; and the plaintiff was also entitled to a judgment for such damages as he had suffered from the defendant’s violation of the covenant in past time.
    By the judgment in this action the plaintiff recovered as damages the difference in value of his house as it was affected by the tenement house, and the value it would have possessed if the lot on which the tenement house was built was a vacant lot. Held, that this rule of damages was erroneous. He could not have been damaged to such an amount. Also, that the measure of damages in an equitable action of this kind, is not different from the measure in a legal action for damages, and such damages as might be recovered in a legal action brought for the damages, may be recovered in an equitable action for an injunction and damages, because equity will give full relief but will not increase the amount that might be recovered by law.
    On the question, whether damages to the plaintiff’s premises in the future and for all time could be assessed in this action, Held, that they could not be so assessed.
    Before Sedgwick, Ch. J., and Freedman. J.
    . Decided June 28, 1889.
    Appeal by defendant from a judgment entered upon findings, &c., made by a judge at special term. The following opinion was delivered at special term:—
    Truax, J.—The covenant was made for the express purpose of preventing the erection of tenement houses in the block mentioned in the covenant; and although tenement houses have since been erected in the immediate neighborhood that fact does not authorize the defendant in erecting a tenement house in violation of the provisions of the covenant; for it is evident from the fact that the parties interested entered into the covenant that such erection was anticipated, and that they intended to secure the property mentioned in the covenant from the disturbing influence of tenement houses. In Columbia College v. Thacher, 87 N. Y. 311, it was something not mentioned in the agreement and thus something not anticipated by the parties to the agreement that caused the change in the neighborhood, and that authorized the defendant in maintaining a building prohibited by the agreement. Judgment is ordered for plaintiff, with costs.
    
      John H. Deane, attorney, and Cephas Brainerd, of counsel, for appellant.
    . William J. Townsend, attorney and of counsel, for respondent.
   By the Court.—Sedgwick, Ch. J.

The parties to the action were severally the owners of lots and buildings on them in a block in this city. The former owner of the block had conveyed the whole of it to different persons in various portions. In each of the conveyances by him was a covenant by the grantee for himself and his assigns, that neither he nor his assigns would erect, suffer or permit upon the premises conveyed, any tenement house, and it was agreed that this covenant should run with the land. The parties to this action held under some of these conveyances. The defendant built upon his lot a tenement house and had maintained it up to the time of the bringing of this action.

Under the facts as found by the judge, he was justified in holding that the plaintiff was entitled to an injunction restraining the defendant from maintaining the tenement house he had built on his lot, and also in holding that it did not appear that such a restraint would be inequitable because the covenant, if specifically enforced, would substantially deprive the defendant of the only use of his lot to which it could be profitably devoted, and that, whatever change there had been in the neighborhood, it did not deprive the plaintiff of a right to an injunction inasmuch as the covenant had been made between the parties originally as a preventive of the injurious effects of such a change if it should occur. Lattimer v. Livermore, 72 N. Y. 174 ; Trustees of Columbia College v. Thacher, 87 Ib. 311.

The plaintiff was also entitled to a judgment for such damage as he had suffered from the defendant’s violation of the covenant in past time. He recovered the difference in value of his house as it was affected by the tenement house, and the value it would have possessed if the lot on which the tenement was built was a vacant lot. I cannot see how, according to the evidence, he could have been damaged in that amount. He would not be damaged by his inability to procure the greater value, or upon a sale, when there was no proof that he wished or had wished to sell or to procure the value. Until he was selling no damage would accrue to him excepting such as would arise from the diminution, caused by the tenement house, of the value of his occupation. Of this latter there was no proof. I do not agree that the damage assessed was in part that flowing from canses other than defendant’s tenement house. They were confined to the effect of that house upon plaintiff’s premises, but as they did not relate to the diminished value of the occupation, the judgment given for their amount should be reversed.

If the larger question was to be considered, that is, whether damages to the plaintiff’s premises in the future and for all time could be assessed in such an action, I would be of the opinion, that the Pond case, 112 N. Y. 186, and the Uline case, 101 N. Y. 98, determine that they could not. The measure of damages in an equitable action of this kind, is not different from the measure in a legal action for the damages. The principle is, that such damages as might be recovered in a legal action brought for the damages, may be recovered in an equitable action for an injunction and the damages, because equity will give full relief. But equity does not increase the amount that might be recovered at law.

For the reason given the whole judgment should be reversed and a new trial ordered. On that trial, there may be a fresh examination of the question of whether it is equitable under the circumstances to give an injunction.

Judgment reversed and a new trial ordered, with costs to abide the event.

Freedman, J., concurred.  