Kitching v. Brown

• Decision Date: 21 February 1905
• Citation: 180 N.Y. 414,73 N.E. 241
• Parties: KITCHING et al. v. BROWN.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 414

73 N.E. 241

KITCHING et al.

v.BROWN.

Court of Appeals of New York.

Feb. 21, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by George Kitching and others against Kate E. Brown. From a judgment of the Appellate Division (87 N. Y. Supp. 75,92 App. Div. 160) affirming a judgment for defendant, plaintiffs appeal. Modified.

Cullen, C. J., and Bartlett and Gray, JJ., dissenting.

Henry W. Hardon and John Frankenheimer, for appellants.

James L. Bishop, Francis M. Jencks, and Harold Swain, for respondent.

WERNER, J.

This is a suit in equity to restrain the breach of a covenant forbidding the erection of a tenement house by the defendant upon her premises in West Seventy-First street, in the borough of Manhattan, city of New York. The premises of the defendant are on the southerly side of the extreme westerly end of Seventy-First street, having a street frontage of 153 feet, being flanked on the west by the tracks of the New York Central Railroad, and on the east by the adjoining and contiguous premises of the respective plaintiffs. All the parties derive their titles through Jacob Harsen, deceased, by conveyances from his executors in 1873, which contained the following covenant:

‘And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said parties of the first part, their successors and assigns, and with the owners for the time being of the adjacent lots, jointly and severally, that neither the said party of the second part, nor his heirs nor assigns, shall or will, at any time hereafter erect any buildings within forty feet of the front of said premises, except of brick or stone, with roofs of slate or metal, and will not erect or permit upon any part of said premises any stable of any kind, coal yard, slaughter house, meat shop, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or other iron foundry, or any manufacturing of glass, gunpowder, starch, glue, varnish, vitriol, ink, petroleum or turpentine, or any cooper's, carpenter's or cabinetmaker's shop, or any establishment for tanning, dressing, preparing or keeping skins, hides or leather, or any brewery, distillery, sugar refinery or bakery, or drinking or lager beer establishment, circus, menagerie or public show or exhibition of animals, railroad depot, railroad stable, car, engine or tenement house, or any other trade, manufactory, business or calling which may be in any way dangerous, noxious or offensive to the neighboring inhabitants, and that no building shall be erected upon said lands, or any of them, which shall contain any alley or entrance running through them for ingress or egress to rear buildings. And it is declared that this covenant is a lien and runs with said lands, and binds all persons seized thereof for the time being.’

In 1900 the defendant erected upon her premises three apartment houses, seven stories in height, each floor having two apartments that rent from $1,200 to $1,400 a year. The total cost of the buildings was about $400,000, and their equipment was modern, elegant, and complete. The several apartments each consisted of eight or nine rooms, including a private hall, parlor, library, dining room, butler's pantry, kitchen, five bedrooms, servants' room, private bathroom with shower bath and closet, servants' bathroom, and closet. The rooms are finished in natural woods, highly polished, and the walls are handsomely frescoed, tinted, or papered. The buildings are heated by steam or hot water, lighted by electricity, provided with hot and cold water conveyed in openwork plumbing, with gas ranges for cooking, electric elevators, and, in short, equipped with every modern improvement designed to promote convenience, comfort, and sanitation. The adjoining and contiguous premises of the respective plaintiffs are occupied by buildings designed and adapted exclusively for use as private dwelling houses. It is conceded that before these apartment houses were erected the plaintiffs and others notified the defendant of their protest, and of their intention to commence suit if the work should be undertaken, and the date of the commencement of the suit is conclusive evidence of the promptness with which the plaintiffs proceeded to protect and enforce their rights. We have therefore a case unembarrassed by such extraneous or incidental considerations as laches or waiver, and the single question fairly presented is whether the covenant above quoted covers the kind of structure which the defendant has erected upon her premises.

At the threshold of the case there is a question relating to the admission of evidence, which should be first decided, for, if we should hold that the trial court committed error in this regard, there would be no occasion to consider the merits. The defendant called as witnesses a number of persons having special information and knowledge of the building trade and conditions in 1873, when the covenant was made, and of the changes and developments which have taken place since then. The substance of their testimony was that in 1873 there was no such building as the modern apartment house, which was not a development of the ‘tenement house’ of that period, but a radical departure therefrom, suggested by new conditions much later in point of time; and that the term ‘tenement house,’ as then generally known and understood, had reference to community houses occupied by persons of small means, the distinguishing characteristics of which were the common use of hallways, water-closets, water and yard privileges, by a population crowded into insufficient space and deprived of many of the essentials to privacy, decency, and health. The book definitions, to which we shall hereafter refer, when contrasted with the general and popular understanding and use of the term ‘tenement house,’ clearly show that its meaning as used in a particular covenant at a specified time cannot be judicially ascertained without taking judicial cognizance of contemporary conditions, or resorting to competent evidence for that purpose. When a word or phrase used in a covenant has more than one meaning, judicial knowledge of existing circumstances and conditions is indispensable to a correct exposition of the law upon the subject, and to that end parol evidence is admissible. Rynolds v. Commerce Fire Ins. Co., 47 N. Y. 597-605;Collender v. Dinsmore, 55 N. Y. 200, 14 Am. Rep. 224. One of the familiar rules applicable to the interpretation of ambiguous covenants and agreements is to ascertain, as nearly as may be, the situation of the parties, their surroundings and circumstances, the occasion and apparent object of their stipulations, and from all these sources to gather the meaning and intent of their language. Smith v. Kerr, 108 N. Y. 31-37, 15 N. E. 70,2 Am. St. Rep. 362;Springsteen v. Samson, 32 N. Y. 703;Evansville Nat. Bk. v. Kaufmann, 93 N. Y. 273-281,45 Am. Rep. 204;Merriam v. U. S., 107 U. S. 437, 2 Sup. Ct. 536,27 L. Ed. 530. As will more clearly appear in the further development of the discussion, it was necessary for the trial court to know something of the housing conditions which prevailed in New York City in 1873, when the covenant herein was made, and that information it had the right to obtain from witnesses competent to speak upon the subject. For these reasons we think there was no error in the admission of the so-called expert testimony, and we proceed to consider the case upon the merits.

Thus far the courts have upheld the defendant in the contention that the covenant under scrutiny does not inhibit the building and maintenance of the structure which she has erected upon her premises. From the inception of this litigation to the present time the plaintiffs have insisted that tenement houses and apartment houses differ simply in degree, but not in kind, and that in contemplation of law they are one and the same. To support their respective contentions, both parties refer to the covenant, and to three classes of definitions, which may be differentiated as (1) legislative, (2) lexicographic, (3) judicial. We shall briefly discuss the first two before taking up the covenant and the authorities.

In 1867 the Legislature passed an act (page 2265, c. 908) for the regulation of tenement and lodging houses in the cities of New York and Brooklyn, in which (section 17) a tenement house within the meaning of the act ‘shall be taken to mean and include every house, building, or portion thereof which is rented, leased, let or hired out to be occupied, or is occupied as the home or residence of more than three families living independently of another, and oing their cooking upon the premises, or by more than two families upon a floor, so living and cooking, but having a common right in the halls, stairways, yards, water closets or privies, or some of them.’ This is the legislative definition relied upon by the plaintiffs. The most cursory perusal of its context discloses that it relates not merely to a different class, but a different kind, of buildings than those erected by the defendant, and that the definition was coined for a limited and specified purpose. The act, which consists of 19 sections, deals with the evils peculiar to the lowest grade of tenement houses as they existed in 1867, and was designed to compel the observance of the most primary and simple rules of ventilation, disinfection, sanitation, and safety. Halls and bedrooms were to be ventilated; roofs kept in repair; stairs provided with railings or bannisters; there was to be at least one water-closet for every 20 persons, properly equipped with traps and connected with sewers; cesspools were to be allowed only when unavoidable; cellars were not to be occupied as dwellings without permission from the authorities; every tenement was to be kept clean, and to be whitewashed at least twice a year; sick persons were to be reported to the...