
    Alexander Walker et al., Plaintiffs, v. Henry T. McNulty, Defendant.
    
    (Supreme Court, New York Special Term,
    January, 1897.)
    1. Deed — Restrictive covenants.
    Where an action proceeds upon a right attaching as an easement to plaintiffs’ property and as a servitude upon defendant’s property, proof, of such easement and servitude is indispensable. Where, however, plaintiffs found their action, not upon an equity in defendant’s premises, but upon a breach of covenant made with themselves by defendant’s grantor and binding upon defendant, such proof is not necessary.
    2. Same — Consideration.
    The conveyance of the property is a sufficient consideration, for a restrictive covenant entered into by the grantee in behalf of Mmself, his heirs and assigns.
    3. Same —Damage.
    In an action to enforce such a restrictive covenant, actual damage need not be shown.
    
      4. Same — Evasion of, by alteration.
    "A covenant not to erect on premises any buildings “ except private dwellings for the use of one family only,” may not be evaded by originally building a private dwelling for the use of only one family, and ■afterwards altering it for use and occupancy by two families.
    Action to enforce a restrictive covenant in a deed. ■
    Erayer & Seaman, for plaintiffs. . .
    George A. Lavelle and John J. Delaney, for defendant.
    
      
      Received too late for insertion in proper place.— Rep.
    
   Pryor, J.

In resistance, to 'the enforcement of a restrictive covenant in a conveyance, the defendant objects a defect of proof • that the restriction' was. intended for the benefit of plaintiffs’premises. Were such evidence requisite to the support of the action,. I should deem it sufficiently furnished in the situation of the land retained in reference to the land conveyed; in the restrictions contained in other conveyances, and generally in the attending circumstances of the ’ transaction. Ladd v. City of Boston, note, 21 Am. St. Rep. 489-491, 499; Peck v. Conway, 119 Mass. 546. But the proof demanded- was not necessary. '

Where the action proceeds upon a right attaching as an easement to the plaintiff’s property and as a servitude upon defendant’s., property, proof of such easement and servitude is indispensable. In such case an intention to create an easement , for the benefit of the one property, and to impose a servitude as a burden upon the other property, must appear by satisfactory' evidence.. Such were the cases cited upon the briefs; but such is not the present action. Plaintiffs found their action not, as in the common cáse, upon án equity in defendant’s premises, but upon a breach of a covenant made with themselves and binding upon defendant.

In the deed from the plaintiffs to Grennell of the premises now owned by the defendant, the grantee covenanted as follows:.

“And the said party of the second part, for himself, his heirs and assigns, does hereby covenant and agree with the said parties of the first part, their heirs, executors, administrators and assigns, that neither the said party of the second part, his heirs or assigns, shall or will at any time before the twelfth day of April, 1912, erect or permit on any part of the premises above described any buildings of any kind whatsoever, except private dwellings for the use of one family only. This covenant shall bind the legal representatives of the respective parties and be taken and construed as running with the land until April 12th, 1912.” In the deed from Grennell to defendant it is expressly stated that the conveyance is “subject to the covenants and restrictions” contained in plaintiffs’ deed to Grennell. Thus plaintiffs sue, as grantors, for a breach by the grantee’s assignee of a covenant restricting the use of the premises conveyed, and expressly stipulated “ be taken and construed as running with the -land.” The benefit of the covenant inures to the grantor, and the burden of it rests on the estate to which it was annexed and on those who hold it or any part of it subject to the covenant. Bigelow, Ch. J., in Jewell v. Lee, 92 Am. Dec. 744, 746; 14 Allen, 145.

Obviously the conveyance,of the property by the plaintiffs was . a sufficient consideration for the covenant by defendant’s assignor.

Actual damage to the plaintiffs need not be shown. “ Such an act of the defendants would be against the restriction by which they are bound, and a violation of the rights of the plaintiff,' of which she cannot be deprived because in the judgment of others it is of little or no. damage.” Peck v. Conway, 119 Mass. 546. “ There is no doub.t that, as between the covenantor and the covenantee, the latter may have an injunction to restrain a breach of the covenant without showing actual damage.” 21 Am. St. Rep. 486. The question involved is one of right under the covenant. Gawtry v. Leland, 40 N. J. Eq. 324.

That the thing done and intended by the defendant is a breach of the covenant, I take to be an indisputable and virtually an undisputed proposition. The position that if the house be originally built as a private dwelling for the use of only one family, it may, consistently with an honest observance of the covenant, be afterwards altered for use and occupancy by two families, is not to be maintained in a court of equity.

Plaintiffs’ right to enjoin the violation of the covenant by defendant is clear beyond question. Atlantic Dock Co. v. Leavitt, 54 N. Y. 35. The authority relied on by the defendant (Equitable Society v. Brennan, 148 N. Y. 661) is of no relevancy to the case in' controversy.

Judgment for plaintiffs, with costs.  