
    Julius Zweig, Plaintiff, v. Samuel Sweedler, Defendant.
    First Department,
    October 21, 1910.
    Real property — deeds — when restriction construed as covenant rather than as condition subsequent.
    Whether or not words in a deed are to be construed as creating a covenant or a condition subsequent does not necessarily depend upon the technical language used.
    A vendee of land who agrees to take title subject to covenants and restrictions contained in former deeds cannot reject the title as unmarketable because a former conveyance contained a provision to the effect that, if the grantee, his heirs or assigns, should erect a slaughter house on the property, or permit slaughtering to be done thereon, the estate. granted should terminate, where no provision for a re-entry for a breach-of covenant was made and the grantor did not own adjoining lands benefited by the restriction. Such clause will be construed as a covenant, not as a condition subsequent.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      Max Herzféld, for the plaintiff.
    
      Nathan Sweedler, for the defendant.
   McLaughlin, J.:

The parties to this subrmssion entered into a written contract by the terms of which the plaintiff agreed to sell and the defendant to buy, at a time and for a consideration stated, certain real estate in the city of blew York. At the time fixed for the completion of the contract by the delivery of a deed defendant refused to take title on the ground that the same was not marketable. The contract provided, among other things, that defendant was to take title “ subject to all covenants and restrictions contained in former deeds.” On the 2d of December, 1817, one William Wilson con. veyed the premises in question to Walter Durbrow, and that deed contained a provision to the effect that if Durbrow, his heirs or assigns, should, erect or build upon the real estate or any part thereof a slaughter house or houses, or any building or buildings whatsoever, to be used or occupied as a slaughter house or slaughter houses, or for the purpose of slaughtering or butchering cattle or sheep or animals,” or should permit such slaughtering to be done in any buildings or upon such" land, that then and in that event the estate granted should terminate and be void, anything in the conveyance to the contrary notwithstanding. Defendant refused tó take the title by reason of such .provision, contending that the same created not a covenant but a condition subsequent.

Whether or not words in a deed are to be construed as creating a covenant or a condition subsequent does not necessarily depend upon the technical language used. Thus, in Post v. Weil (115 N. Y. 361), where a deed contained this clause, “Provided always, and these presents are upon this express condition, that the aforesaid premises shall not, nor shall any part thereof, or any building or buildings thereon erected or to be erected, be at any time hereafter used or occupied as a tavern or public house of any kind,” it was held.that the words used did not create a condition subsequent but simply a covenant running with the land for the benefit of the ad joining estate. Judge Gbay, who delivered the opinion, said: “ If we can construe this clause as an obligation to abstain from doing the thing described, which,, by acceptance of the deed, became binding upon the grantee as an agreement, enforceable in behalf of any interest entitled to invoke its protection, I think we are in conscience bound to give that construction and thereby place our-, selves in accord with that inclination of the law which regards with disfavor conditions involving forfeiture of estates. In this connection it may be noted that there is no clause in the deed giving the right to re-enter for conditions broken. While the presence of such a clause is not essential to the creation of a condition subsequent by which an estate may be defeated at the exercise of an election by the grantor or his heirs to re-enter, yet its absence to that extent frees still more the case from the difficulty of giving, a more benignant construction to the proviso clause. The presence of a re-entry clause might make certain that which in its absence is left open to construction.”

In Graves v. Deterling (120 N. Y, 447) Judge Vann, referring to a provision in a deed which it was claimed created a condition subsequent, said : “ There is no provision for a forfeiture or re-entry, nor anything from which it can fairly be inferred that the continuance of the estate is to depend upon the supposed condition, yet this is regarded as essential in order to create a condition.” (See, also, Richter v. Distelhurst, 116 App. Div. 269.)

In the case now before us, according to the submission, Wilson did not own any land or property of any kind adjoining the premises conveyed, so that the restriction could not have been for the purpose of protecting his adjoining property. There is no clause in the deed which gave him the right of re-entry. He purchased the premises for $1,100 shortly before his conveyance to Durbrow, to whom he sold them for $2,000. I think that the clause in the deed from Wilson to Durbrow did not create a condition subsequent, but that the same should be construed as a covenant, and if such construction be put upon it, then the defendant agreed, in the contract, to take title subject thereto.

I am of the opinion the title is good, and for that reason the plaintiff is entitled to judgment, with costs.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment for plaintiff, with costs. Settle order on notice.  