
    Max Marx, Plaintiff, v. Charles Brogan, Defendant.
    First Department,
    March 9, 1906.
    Real property — covenant not to erect tenement house — such, covenant not violated by erection of apartment house — burden of proof to show ■ meaning of covenant.
    A contract between adjoining landowners, covenanting that neither óf them will, for a period of twenty-five years, erect “any tenement house,” is not violated by the erection of an apartment house of modern and superior construction.
    There is a difference between an apartment house and 'a tenement house which will be recognized by the courts.
    To restrain the erection of such apartment hoúsé as a violation of said covenant, the burden is on the plaintiff to show that the building is what is known as a “ tenement house ’’-within the meaning of the covenant'. '!
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Eugene D. Boyer, for the plaintiff.
    
      Henry W. Hayden, for the defendant.
   Patterson, J.:

’The parties to this record have submitted their controversy upon an agreed statement of facts, pursuant to sections 1279,1280 and 1281 of the Code of Civil Procedure, by which it appears that the plain-' tiff is the owner of a dwelling house at the southeasterly corner of Convent avenue and' One Hundred" and Forty-eighth street in the borough of Manhattan, city, of Hew York, and the defendant is the owner of a vacant plot of ground adjoining the plaintiff’s premises. On June 10, 1889, the parties to the submission entered into an .agreement in writing in which it is recited that they are > desirous of increasing the value of their lots and improving the character of the neighborhood, and it is then provided in the agreement as follows : That for the period of 25 years next ensuing from the date . hereof, there shall not be erected or permitted upon any part of said lots any tenement house, or any foundry, manufactory, distillery, billiard- saloon, drinking saloon, store, shop or livery stable, or any n.oxious trade or business whatsoever.” The defendant intending to erect á building upon his land, the plaintiff seeks to enjoin Mm from so doing, on. the ground that the proposed building, if erected, wouM be in violation of the restrictive covenant above set forth, and would seriously affect the value of the plaintiff’s premises. The defendant insists that there is no violation of the covenant, but on the contrary that his proposed building is an apartment house of a superior character, and that such a structure is not within the inhibition of the covenant. In the submission the defendant’s proposed building is described as an apartment house. It is referred to as a “ six-story elevator apartment house of brick and limestone,” and the details of construction are set forth. The ground floor is to consist of five apartments; three containing five rooms each; one containing six rooms, and one containing seven rooms. The five upper floors are to contain six apartments each, four of which will consist of five rooms each, and two of six rooms each. Each apartment, in addition to the rooms above mentioned, is to contain a private hall and private bathroom and closet, and- each apartment includes a parlor, dining room, chamber, kitchen and servants’ room. The floors aré to be of hard wood, and the rooms are to be finished in oak and birchwood, and the parlors are to have mantels and open fireplaces; with gas logs. The walls are to be papered and decorated, except those of the dining rooms, which are to be paneled in antique oak. The building and all of the apartments i are to be heated by steam, equipped for lighting by. both electricity and gas; provided with hot and cold water conveyed in open-work plumbing, with gas ranges for cooking, dumbwaiter, and each apartment is to have a private long-distance telephone. The main hall is to be wainscoted with imported marble, and tliére is to be an electric passenger elevator for the use of all the tenants. A picture of the facade of the proposed building is annexed to the submission, and an inspection of it' will show that if and when erected it will present a dignified and attractive appearance.

That there.is a wide difference between a tenement house and an apartment house (and in the construction of covenants, such as that involved here, such difference is recognized by the courts) is well settled. (Kitching v. Brown, 180 N. Y. 414; White v. Collins Building & Const. Co., 82 App. Div. 1.) While there is no actual legal definition of a tenement house, still, in the year 1889, when'the covenant between -these parties was made —- and e,ven prior thereto — the difference between, such a house and an apartment house wras a matter of common .knowledge. In the submission the parties to this controversy have called the defendant’s proposed building an-apartment house, -and the details of construction appearing in the record indicate its superior quality. In order to bring the structure, which the defendant intends to erect within the operation of the restrictive covenant it is necessary for the plaintiff to show that it is what; was known and understood to be a tenement house within the meaning of that covenant. That he has failed to do.. With therrecognized distinction between apartment- and tenement houses the court cannot assume that the covenant will be Violated by. the defendant putting up a building of the character described in the submission. ' - ■

Judgment should be ordered for the defendant, with costs.

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Judgment ordered for defendant, with costs. Settle.order on notice. ,  