
    Michael W. Flynn, Appellant, v. New York, Westchester and Boston Railway Company and Others, Respondents.
    Second Department,
    December 10, 1909.
    Injunction — real property— restrictive covenants —injunction denied.'
    Where the'owner of certain lots subject to restrictive covenants that no structure for business purposes should be erected thereon, and. tliat no building should be placed within fifteen feet of the street line, sells some of his lots to a contractor constructing a railroad through the territory knowing of the construction of the road and that the lots were to be used for railroad purposes, he is not entitled to a temporary injunction restraining the railroad company from constructing its road over the tract.
    That the defendant-had erected a temporary building made necessary by. the-construction work within fifteen feet, of the street line, is not ground for granting such an injunction. 1
    Appeal by the plaintiff, Michael W. Flynn, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of August, 1909. . •
    
      Edwin L. Palish [Harrison J. Goriant with him on the brief], for the appellant.
    
      Allen Wardwell \Ralph P. Buell with him on the brief], for the respondents.
   Burr, J.:

Plaintiff apjieals from an order entered in this action on the seventeenth day of August last, denying his motion for a temporary injunction restraining the defendants from constructing an electric railroad over a strip of ground.owned by one of them and known as lots Nos. 1 to 38, inclusive, on a map entitled '“ Map of Property at New Rochelle, N. Y., owned by Theodore Prince, by Horace Crosby, C. E.” The plaintiff owns lots Nos. 105 to 108, inclusive, on the same map, upon a part of which he has erected a dwelling house. The plaintiff claims that all of the property on the Prince map was sold subject to restrictive covenants which provided, among other things, that “ no building or structure for ány business purpose whatsoever shall be erected on said premises. No part of any structure erected shall be within fifteen feet of any Street or street line upon which the lot or lots abut.” He claims that the construction and operation of an electric railroad would be a violation of the said covenants and also that the defendants have placed a building within fifteen feet of-.the line of one of the streets. It may be a question whether equity will restrain by injunction a public service corporation from using land which it has acquired by purchase for its lawful purposes, even though such use may be a. violation of a covenant of that character. (Beasley v. Texas & Pacific Railway Co., 191 U. S. 492.) Be that as- it may, upon the record here presented plaintiff is not entitled to relief by Way of temporary injunction. In April last he sold three of the lots above described to.the defendant the City and County Contract Company, which has the contract for constructing the railroad. This defendant claims that at that time the construction of the road was in progress, that the plaintiff knew of it,, that he knew that the property which he sold was to be used for railroad purposes and that, by reason of the necessity on the part of the defendant to have these lots, the plaintiff was paid more .than the market value thereof. It is true that the plaintiff denies this, but the letter addressed to him on April 2, 1909, and his reply on April sixth, would seem to indicate that he did know it. This defendant claims that while it is true that it has placed a building within fifteen feet of the street line, this-is only temporary, made necessary by the construction' of the road, and that as soon as such construction is completed it will be removed. All of these disputed questions of fact can be more satisfactorily settled upon the trial of the action, when witnesses can be examined -and. cross-examined. The case could have been tried before this appeal was heal’d, and under such circumstances appeals from such an order should not be encouraged.

The order appealed from should be affirmed, with ten dollars costs and disbursements. •

Woodwaed,. Jehks, Rioh and Mill.ee, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  