
    Sampson H. Schwarz, Plaintiff, v. Henry Duhne, Defendant.
    First Department,
    March 8, 1907.
    Real property — covenant against offensive trades — when not enforced by reason of altered character of neighborhood.
    Although a restrictive covenant made at.a time when property in the locality was used for dwelling houses provides that no building other than-dwelling houses or stores of brick, stone or marble, etc., shall be erected, and prohibits the carrying on of offensive trades, yet when the locality has ceased to be used for residential purposes, and is filled with inferior tenement houses, stables and factories, there has been such a change in the character of the neighborhood as to defeat the object of the covenant, and a court of equity will refuse to enforce it by injunction at the instance of an owner who otherwise would be entitled to the benefit of the restriction.
    
      Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the- Code of Civil Procedure.
    
      Sampson H. Schwarz,. for the plaintiff.
    
      Charles E. Hunter, for the defendant.
   Houghton, J.:

The plaintiff and defendant own respectively premises Nos. 74 and 76 Horatio street in the city of New York. Many years ago the locality was a residential- one and. both parcels were owned by one Cutting who conveyed each subject to a covenant that no “ buildings other than dwelling houses or stores of brick, stone or marble of at least two stories in height covering the whole front of each of the lots ” should be erected thereon, as well as a further covenant against nuisances, embracing slaughter houses, furnaces, various manufactories, tanneries, or any oth.er manufactory, trade, business or calling whatsoever which may be in anywise dangerous or noxious Or offensive to the neighboring inhabitants.”- Since this covenant was made the character of Horatio and surrounding streets has entirely changed. The plaintiff lives in his house, -which is an old three-story one-family dwelling.. The defendant’s house is of the same character, but he uses the first floor for a wholesale oyster market and lives on the upper floors. No. 68 Horatio street, which is at the corner of Greenwich, and two doors from plaintiff’s premises, is occupied as a Chinese laundry, with a stable in .the rear and sawdust factory in the upper part. Nearby four houses have been converted into a double tenement house, -with four families on a floor, and other double tenements so occupied are in the immediate vicinity. The surrounding, streets are filled with tenement houses of poor character, stables, spagetti factories and various other industries incompatible with an ordinary residential district.

The defendant purposes to remodel his house and convert it into a stable and carriage house, and the plaintiff asks that he be restrained from so doing in view of the covenants above set forth.

We think the stipulated facts'show there has been.such a change in -the character of the neighborhood as to defeat the object and purpose of'the covenants and to render it inequitable to deprive the defendánt Of the privilege of conforming his property to the uses to which the surrounding property is put. Where such a situation exists a court of equity will not enforce the observance of the covenants at the instance of an owner who otherwise would be entitled to the benefits of the restriction. (Trustees of Columbia College v. Thacker, 87 N. Y. 311; McClure v. Leaycraft, 183 id. 36.) The plaintiff should not, therefore, have the injunction which he asks.

The judgment must be for the defendant, but only to the extent that it is adjudged that plaintiff is not entitled to an injunction restraining defendant from altering his building and changing it into, a stable and carriage house.

The stipulation provides that no costs should be awarded and none are allowed.

Patterson, P. J., Laughlin, Scott and Lambert, JJ., concurred.

Judgment ordered for defendant to the extent stated in opinion, without costs. Settle order on notice.  