
    Samuel J. L. Norton and Francis S. McDivitt, Respondents, v. Fanny Ritter and Others, Defendants, Impleaded with Louis Kain, Sued as Louis Kane, Appellant.
    Second Department,
    October 4, 1907.
    Beal property—Statute of Frauds — restrictive covenant — effect of failure to allege false representation.
    An oral representation by a grantor that adjoining lands owned by him were subject to a restriction limiting the buildings thereon to private residences is - void under the Statute of Frauds.
    Although such- representation were made to induce the sfie, the defendant’ will not .be enjoined from building contrary to the representation under a complaint not alleging fraud, on which the plaintiff relied, .whereby he. was deceived.
    
      Appeal by the defendant, Louis I£ain, .from a judgment, of the Supreme' Court in favor of the .plaintiffs, entered in the office of the clerk of the county of Kings on the 10th day of April, 1906, upon the decision of the court, rendered after a trial at the Kings County Special Term, granting a perpetual injunction.-
    
      Henry Joralemon Davenport, for the appellant.
    
      Francis S. McDivitt, for the respondents.
   Gaynor, J.:

The case comes down to this: The defendant Frank C. Kohart (and the appellant only represents him, as the trial judge found) owned four adjoining lots of land. He erected detached . one . ■family dwellings on two of them, and sold ahd conveyed one to each of the plaintiffs. To induce them to purchase he represented to them that each of the two remaining lots were restricted against the erection of any building thereon excepting a private residence. like the two he had built, and promised-that no other kind of building would be erected thereon." Ho covenant to this effect was put in the contracts of sale nor in the deeds of conveyance. This suit was brought to obtain a judgment perpetually restraining the said defendant from erecting ah apartment house on his said land, and the plaintiff obtained judgment. The complaint is also on- the ground of prior restrictive covenants running with the land, but such covenants had become extinct, and the judgment below was put upon the oral representation, and promise only.

In respect of the álleged representation that the land was restricted, it suffices that it is, not alleged that such representation ■ was fraudulent, or that the plaintiffs relied upon it or were deceived by it. It follows that no relief could be given under the head of fraud or of estoppel. The case came down^ therefore, to the enforcement of the oral promise.. That it was not a ground for the jurisdiction of equity.cannot be gainsaid ; it was void (Real Property Law, §§ 207, 224). An easement • in land can be created only by a grant (Wiseman v. Lucksinger, 84 N. Y. 31; Newman v. Nellis, 97 id. 285; Nellis v. Munson, 108 id. 453; White v. Manhattan R. Co., 139 id. 19). The ease of Lewis v. Gollner (129 N. Y. 227) is not applicable. There, ene who was in the business of building flats made an agreement with the people of a neighborhood in consideration of the purchase by them of a plot of land lie-was - about to devote to that use, and. of a sum paid to him by them, that he would not thereafter erect any flat in that neighborhood. He was enjoined from violating his agreement. It was not a case of an easement in land at all, but of ' a valid agreement restraining the defendant in his business. There was a valid agreement for equity to enforce, while here there was not. There was also a valid agreement in Hodge v. Sloan (107 N. Y. 244), viz., in the deed itself. In Land Co. v. Solly (148 N. Y. 42) the defendant built a house on the- land on the faith of an oral agreement that the deed'when delivered was to be without restrictions, and this gave ■ ¡s ° equity jurisdiction to reform the deed as prayed for by the answer, ■instead'.of granting an injunction to prevent a. violation of the restrictive covenant in the deed as delivered. The agreement was also deemed, valid in Tallmadge v. East River Bank (26 N. Y. 105), whether correctly or not, and in the cases cited in the opinion in that, case there. were valid agreements. If the . complaint here alleged arid was based on fraud or mistake, and a reformation of the deeds of conveyance was prayed for, a different case would be presented; but we have to take the issue as it is. The .judgment should be reversed.

Hiksohbebg, P. J., Jenks and Miller, JJ., concurred.

. Judgment reversed and new trial granted, costs to abide the final award of costs. ' ,.-V  