
    Rosa Zipp, as Sole Surviving Executrix of and Trustee under the Last Will and Testament of George Zipp, Deceased, Respondent, v. Frances E. Barker and Samuel P. Barker, as Surviving Executors of and Trustees under the Last Will and Testament of Charles Barker, Deceased, and Others, Appellants.
    
      Covenant restricting the use of a strip of land abutting on a street—change in the character of the neighborhood—consent of certain lot owners to its abolition—violations of the covenant.
    
    .A mutual covenant contained in a partition deed, describing the land with reference to a map, on which the land is divided into streets and building lots, by which covenant it is agreed that no buildings of any kind shall be erected upon .a strip fifteen feet in width upon each side of one of such streets, vests in a ; subsequent grantee of one of the lots on that street an easement of light, air and unobstructed, view over the fifteen-foot strip in front of the remainder of the lots; with which easement a court of equity will not interfere, nor permit interference by others who are privies to the covenant.
    ‘The court will not refuse to compel the specific performance of the covenant, because the character of the neighborhood has changed from a residential to a business one, where it appears that the covenant is just as valuable for the latter as for the former.
    A paper signed by all but two of the owners of the lots on the street, by which the subscribers express their desire to have the restriction removed from the fifteen-foot strip, is not admissible in an action brought, by one of- the lot owners who did not sign, to secure the enforcement of the restriction.
    'The right of such owner to enforce the restriction is not affected by the fact that persons other than the defendants, some of whom claim under the same source of title as the plaintiff, have encroached upon the strip and interfered with the •easement.
    
      Appeal by the defendants,, Frances E. Barker and another, as-surviving executors of and trustees under the last will and testament of Charles Barker, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1899,. upon the decision, of the court rendered after a trial at the Kings ' County Special Term restraining the defendants from erecjting or ' maintaining any structure of any kind upon any part of the court yard described in the judgment. I ’
    
      Robert H. Elder, for the appellants.
    
      Hugo Hirsh, for the respondent.
   Goodrich, P. J.:

The plaintiff brings tins action to restrain the defendants from erecting and maintaining a structure on premises at the corner of Fulton street and Elm place in the borough of Brooklyn^ which premises she contends- are restricted to use only as a court yard or open space. • i

The heirs of Johannes Debevoise were owners of a lár¿e tract of land, between the southerly side of Fulton street and Livingston, street and beyond, extending from a line more than 100 feet westerly from Elm place a considerable distance easterly on jFultpni Street, taking in Elm place (formerly .Debevoise place), Bond street and Hanover place. The heirs, Anna Prince, Susan Lawrence and Margaretta Willoughby, in 1836; executed a partition deed between themselves. Annexed to the' deed was a map laying out and ¡naming the- streets with the lots consecutively numbered. The map was-declared to be a part of the indenture. The original name pf Elm place on that map was Debevoise place. . | .

By this deed partition of the tract was made of the “ lots and! premises with their and each of their appurtenances/’ and_ it purported to convey to Susan Lawrence, her heirs and assigns,- “ fhe several lots or subdivisions of the said tract which on the said map are» designated by the several numbers and bounded in front. * * * by the several -streets and places first hereinafter specified and najmed, to wit :•*_.* * (among others) lots number 8 (eight), 9 (nine) and, 10 (ten) on the westerly side of Debevoise: place.”- These 'lots by mesne conveyances were conveyed to George Zipp, of whose will the plaintiff is executrix. The lots are 50 feet in width on Elm street and 125 feet in depth. Lot 7 on such map was conveyed to Margaretta Willoughby, and by mesne conveyances became vested in Charles Barker, of whose will two of the defendants are executors. The defendants Weir are their lessees. Lot 7 is at the corner of Fulton street and Elm place, being 25 feet in width on Fulton street and extending along Elm place 116 feet to the line of the plaintiff’s premises. The ¡partition deed conveyed to each grantee one-half of the streets- and places delineated on the map opposite to and adjoining the lots conveyed to them respectively to be used as public streets until closed by public authority or the consent of such persons as may be legally authorized to close the same.

There was also a mutual covenant in the deed “ that no dwelling house, store house or other building or structure of any kind or description whatsoever (excepting fences) shall at any time or times hereafter be erected on any lot of ground fronting on or otherwise adjoining Debevoise place, Bond street, northwardly of Schermerhorn street or Hanover place (as the same are laid down and designated on the aforesaid map) within the several distances hereinafter specified from the lines or sides of said places and street, respectively, that is to say, with regard to Debevoise place within fifteen feet; * * * but, on the contrary -thereof, that every building or structure of whatever kind or description which may be erected or placed on those parts of the said lots or grounds, respectively, which front upon or otherwise adjoin the said places and street, respectively, * * * (excepting fences) shall be erected or placed on the following lines, that is to say, in the case of Debevoise place, on lines uniformly distant on each side forty feet from the center of said place, * * * leaving eighty feet and no more between the lines of the buildings fronting upon or otherwise adjoining the opposite side of Debevoise place, * * - * but without any restriction upon the right to erect and maintain fences or other ornamental inclosure along the line or lines or sides of said places and streets, respectively, as such lines are, respectively, laid down and designated on the said map, the intent and meaning in this respect of these presents, and of the several and respective parties thereto, being on the one hand to insure an open space of the several widths above mentioned between the lines of the buildings fronting on or adjoining the said streets and spaces, respectively, and the observance of uniformity in the location of such lines, and on the other; to leave the several owners and proprietors for the time being of the said lots and premises, respectively, at full liberty to inclose and.improve as court yards or ornamental grounds the several spaces between the fronts of such buildings and the lines of the said street and places, respectively, as laid down and designated on the said map, and also that (subject to the public easement above mentioned in .regard to the several streets, places and alleys aforesaid, and subject to the •above covenant in regard to the location, of buildings fronting on or :otherwise adjoining the street and places, respectively, mentioned in said covenant) each of the said parties to these presents, and the respective representatives of each of them, * * * shall and •may henceforth and forever well and peaceably have, hold, use, occupy, possess and enjoy all and singular the said land and ¡premises- * * * without any lot, hindrance, stay, disturbance or interruption by them, the said parties, or either of them, their, or either of their, heirs .or assigns, or by any person or persons lawfully claiming or to claim by, from or under them, or any of them.”

• Debevoise place was laid down on such map as a street of eighty feet in width from the building line on each side of the place, a part of which consisted of a strip on' each side of the street fifteen feet in width, denominated “ court yards,” and extending from Living- • ston street to Fulton, a distance of about 232 feet.

Many years ago buildings were erected on all of the lots on both - sides of Elm place from Fulton street to Livingston, in conformity'to the building lines shown on the map, leaving a space of eighty feet • between the fronts. Some of the. owners constructed court yards with fences in front of their buildings, but there was in no case at the time of the original building any encroachment on the court yard. All of the buildings except those on the corners were built and occupied as residences. In March, 1896, the defendants,. or some of them, erected a one-story structure on the court yard strip ' in front of the Elm place side of their premises. This structure extends out twelve feet from the side of the building and forty-nine • feet in depth along Elm place, and it has been since used by the defendants Weir as a store for the sale of plants and flowers.

The plaintiff contends that this is a violation of her easement and of the covenants of the partition deed which, as she claims, run with the land. She also contends that the building in question obstructs the view from Fulton street to her building and premises which are now devoted to business purposes.

On the other hand, the defendants contend that the character of the neighborhood has become so completely altered by the march of business and otherwise that the premises are no longer useful for residential, but are extremely valuable for business purposes, and that equity will no longer enforce the covenants, as that would result in a loss to all'the owners. The building on Lot FTo. 7, the corner of Fulton street and Elm place, as also the building on the opposite corner, fronted on Fulton street and were erected and used for business purposes.

There was evidence showing that the court yard strip in front of the plaintiff’s premises was worth, for building purposes, $20,000, and that in front of the defendants’ premises, $50,000; that the character of the street has entirely changed.and that there are several other structures on the court yard strips on each side - of the place, which are encroachments and breaches of the covenants of the partition deed.

The doctrine is well settled that the right to a specific performance of a contract by the decree of a court of equity rests in judicial discretion and may be granted or withheld on a consideration of all the circumstances. (Trustees of Columbia College v. Thacher, 87 N. Y. 311; Conger v. N. Y., W. S. & B. R. R. Co., 120 id. 29; Miles v. Dover Furnace Iron Co., 125 id. 294; Amerman v. Deane, 132 id. 355.)

In the last case the court refused to enforce the specific performance of a covenant running with the land and restricting the use thereof for the purpose of private residences or prohibiting the erection of certain specified structures, for the reason that the character of the neighborhood had materially changed from what it was at the time the covenant was executed.' This is familiar doctrine. But we cannot see any applicability of the principle to thé covenant now under consideration. It is nót a covenant against a particular class of buildings suitable to a neighborhood, but ¡a covenant that a condition should be maintained which is just as valuable for a business as for a residential neighborhood. Indeed, wp are of the opinion that the value of the easement in the court yard, strip, under the particular facts of. this case, is greater for. business than for residential purposes, We might assume.that originally the covenant had relation to the condition of the property at that time and that the coparceners had no thought of its coming change; but it is difficult to see why the maintenance of -the easement is not more -essential'to the value of the plaintiff’s property as business premises than it would be if it were used as a residence, :

Elm place is a short street terminating at Livingston street. Most of it is already devoted to business. The plaintiff’s store jadjoins the lot at the corner of Fulton street, and is distant only 116 féet therefrom. There is a wide sidewalk extending from the córner to the plaintiff’s premises. There is also an elevated railroad- station 'which brings many people to the vicinity, and, at the same time, somewhat impedes the view to be had of the plaintiff’s premises. It is of great importance to the complete use -of her premises that the front should be visible from Fulton street. A full' opportunity to .read signs lawfully exposed on the front of the building is of value to the plaintiff. The defendants’ erection interferes with.such view, and we are not prepared to say that it was not in the minds .of the parties, to the partition deed that the growth and extension of business might' change the character of the neighborhood. At all events, the plaintiff obtained an easement to light and air and unobstructed view; and with this easement a court of equiity will not interfere, or permit interference by others who are privies to the covenant.

The defendants contend that it was error to exclude aj paper, signed by all except two of the owners of property on Elm place, to show that such persons desired to use the court yard space free from the restriction of the covenant'. ■ The. exclusion was ¡proper. It is too plain for argument that no such consent could affect the plaintiff’s rights, even if all except herself had. assented thereto.

Ror does it matter that other property owners have encroached upon the strip and interfered with the easement, even some Of those deriving title through the same line of grant as the plaintiff. It may be that the plaintiff feels herself sufficiently burdened with •one action, and awaits the decision of that before commencing others.

This covenant has twice received interpretation at Special Term —- once in an action relative to Bond street, in 1891, when, in an unpublished opinion delivered by Mr. Justice Cullen, certain erections on Bond street were enjoined ; and in 1890, in another action brought by the plaintiff’s testator against the persons owning the fee of the corner now under consideration, when the City Court of Brooklyn enjoined the erection of structures claimed to be in violation of the covenant. It • may be added- that the defendants had notice of this latter decision when they began the erection of the -structure of which the plaintiff complains.

We are clearly of opinion that the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs. 
      
      
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