
    Joseph Diamond, Respondent, v. New York, Westchester and Boston Railway Company, Appellant.
    First Department,
    December 30, 1915.
    Real property — restrictive covenants —use of building lots for private dwellings—violation of covenants by construction of railroad — measure of damages.
    A sale of building lots advertised to be sold together under similar restrictions gives to each purchaser the right to insist upon the covenants implied in the restrictions and the right to damages for violation of the covenants.
    The construction of a railroad on building lots subject to covenants restricting them use to the erection of private dwellings and binding the owners to build houses in a certain .manner and a certain distance from the street, violates the covenants and renders the railroad company liable for damages to owners of other lots with the same restrictions because of the diminution in value of said lots, though not actually taken.
    Where the restrictive covenants expire on a certain date, the proper measure of damages is the rental value of the lots from the date the restrictions are broken to the expiration of the covenants.
    The railroad company cannot be held liable for violating the rights of other lot owners because it has constructed its tracks across certain lots which were advertised to be sold under similar restrictions when the deeds did not contain such restrictions, and the company had no notice thereof, either actual or by record.
    Appeal by the defendant, New York, Westchester and Boston Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of July, 1915, upon the decision of the court after a trial at the New York Special Term. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered, with notice of an intention to bring up for review the exceptions, findings of fact and conclusions of law made by the court.
    
      Ralph Polk Buell, for the appellant.
    
      James F. McKinney, for the respondent.
   Smith, J.:

By the judgment appealed from the defendant has been permanently enjoined from operating its railroad over a certain portion of its right of way, or in the alternative, directed to pay to the plaintiff $4,200, damages to the fee value of plaintiff’s property caused by the operation of said road, and directing that plaintiff recover of the defendant $1,347 with interest from January 15, 1911, to January 15, 1915, as damage to the rental value of said properties to said date. The plaintiff’s contention is that the defendant is trespassing upon certain of the easements attached to his ownership of certain lots, for which no compensation has been paid.

For some time prior to October 9, 1897, there was a large tract of land abutting upon either side of West Farms road, in the borough of The Bronx, which was known as part of the Neill estate. Under the will of J. Josepha Neill, who had died prior to that time seized of said lands, the executors divided up different portions of the lands in city lots and undertook to sell them at different sales at auction. The land south of the West Farms road was advertised for sale upon the 9th day of October, 1897, and in. the advertisement of the sale it was stated that the land on the West Farms road would be sold without restrictions, but that the deeds to purchasers at said sale of all other lots would contain certain restrictions. In a general way these restrictions provided that no building should be erected upon said lots other than private buildings which should be at least two stories in height with a cellar underneath and with a peak or mansayd roof; that the front walls of said buildings should be set back at least ten feet from the front line of the lots; that upon said lots there should not be erected any shop, factory, mill, livery stable, flat, tenement or house designed for or occupied by more than two families, or any bar, barroom, saloon or other place for the sale of ales, wines or liquors, or any trade or vocation which creates bad smells or noises or which is dangerous, noxious or offensive, or render the neighborhood unfit for private residence. It was further provided that these restrictions should bind not only the purchasers, but should run with the land and bind the heirs and assigns of the purchasers. The lots thus advertised for sale at that time were sold either upon the day of the sale or thereafter, and all of them except the lots upon the West Farms road were sold subject to the restrictions. Among; the lots upon the south side of the West Farms road and subject to these restrictions, the plaintiff is the owner of seven. The defendant has constructed a steam and electric railroad over a large number of the said lots. The contention of the plaintiff is that the building by the defendant of its railroad upon these lots subject to these restrictions was a violation of the restrictions of which violation the plaintiff might complain because of the diminution in value of his lots, though not themselves taken.

Under the authority of Flynn v. New York, Westchester & Boston R. Co. (139 App. Div. 199) and of Luhman v. New York, Westchester & Boston R. Co. (81 Misc. Rep. 537; affd,, 163 App. Div. 964), the building of the defendant’s road upon these lands would seem to be a violation of the restrictions under which those lands were held. The sale of the lands advertised to be sold together under similar restrictions gave to each purchaser the. right to insist upon the covenants implied in the restrictions, and the right to damages for a violation of those covenants. This proposition is clearly stated in the case of Korn v. Campbell (192 N. Y. 495). The opinion in that case discusses several classes of cases. Among them is mentioned the first class as embracing: “all the various plans, generally denominated in the English cases as building schemes, under which an owner of a large plot or tract of land divides it into building lots to be sold * * * by deeds which contain uniform covenants restricting the use which the several grantees may make of their premises.” It is there stated: “In such cases the covenant is enforceable by any grantee as against any other, upon the theory that there is a mutuality of covenant and considera- tion which binds each, and gives to each the appropriate remedy. ”

It would thus appear that the plaintiff can justly complain of the defendant’s violation of the restrictions contained in the deeds upon which the property was sold, and as to -this property the sole question remains as to the measure of damages.

The judgment appealed from gives to the plaintiff damages for the injury to the rental value of the property to January 15, 1915, and damages for injury to the fee value, as it is called, thereafter. In the advertisement under which the property was sold and in the several deeds, the restrictions were limited in time to the 1st of January, 1917. If the damage to the fee value had been limited to such damage as was caused by the existence of the restrictions to that date, plaintiff would have no ground of complaint, hut from the sum given it is apparent that there was no such limitation. Under the restrictions in the deeds limited, as they are to the 1st of January, 1917, the plaintiff would be paid his full damage if he received the rental value of his property from the date the restrictions were broken up to January 1,1917, and that we deem to be the correct measure of damages in this case.

Thereafter the plaintiff purchased five other lots under further sales upon the north side of the West Farms road. Four of these lots were upon the West Farms road, and were not themselves subject to the restrictions, and from the nature of the restrictions and of the surrounding property, we are of the opinion that it was not intended to give to the purchasers of those lots the benefits of the restrictions imposed upon other lots in such sale. One of said lots, however, did not adjoin the West Farms road, and was sold subject to the restrictions upon a sale made under like circumstances as the sale of the property south of the West Farms road. The defendant company has upon the north of the West Farms road put its tracks over four of the lots which were advertised to he sold under similar restrictions, but the deeds given by the executors of the estate to the grantees of these four lots did not contain these restrictions. There was, therefore, no record of these restrictions which would give to the defendant any notice thereof upon its purchase of these lots, and there is no proof of actual notice thereof. It cannot be claimed, therefore, that the defendant without proof of notice either actual or by record of any restrictions upon the lots purchased, has violated any of plaintiff’s rights, and for injury to the rental value of lot 226 plaintiff would seem to have no right of action against the defendant. It does not appear when lot 226 was purchased or under what advertisement it was purchased. The first auction sale seemed to cover the lots upon the south of the West Farms road only, and there is nothing in the case that shows that the purchaser of lot 226 upon the north side would have any right to claim any damages from the defendant for violating the restrictions upon the lots south of the West Farms road. Moreover, even if technically a right existed, the separation of West Farms road and the exemption of all of the lots upon that road from any restrictions whatever would seem to negative the conclusion that lot 226 upon the north of that road was to any material extent damaged by defendant’s infringement of restrictions as to lots south of the road.

The following findings of fact of the court below should be reversed: 5, 6, 7, 10, 22, 23, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53.

Finding 54 should be modified so as to read as follows: That by reason of the premises plaintiff’s property has been and will be damaged in its rental value in the sum of $25 per month in each month from January 15, 1911; to January 1, 1917.”

It follows that plaintiff should have judgment for the aggregate of the sums mentioned in finding 54, with interest on each of said monthly sums coming due before the entry of this judgment from the date upon which it became due to the date of the entry. The judgment should be so modified, and' as modified affirmed, without costs to either party.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.  