87 N.Y. 400, Phoenix Ins. Co. v. Continental Ins. Co.

Citation:87 N.Y. 400
Case Date:January 17, 1882
Court:New York Court of Appeals

Page 400

87 N.Y. 400




New York Court of Appeal

January 17, 1882

Argued December 7, 1881.

Page 401


William Allen Butler for appellant. Exceptions and restrictions in a deed are to be construed strictly against the grantor. (Duryea v. Mayor, 62 N.Y. 592, 596.) The covenant constituted a valid agreement between the grantor and

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grantee, and their respective successors in title, that the strip of land in question should not be built upon by the grantee and his successor in title, except upon payment by them of $1,500 to the grantor or his successors in title. (Clement v. Cash, 21 N.Y. 253; Cotheal v. Talmage, 9 Id. 551; Dunlop v. Gregory, 10 Id. 241; Bagly v. Peddie, 16 Id. 469; Dakin v. Williams, 17 Wend. 447; S. C., 22 Id. 201; Leggett v. M. L. Ins. Co., 53 N.Y. 394; Holmes v. Holmes, 11 Barb. 137; Reynolds v. Bridge, 6 El. & Bl. 528.)The plaintiff having an adequate remedy at law in case of the violation of the covenant for the stipulated sum agreed upon as the measure of damage therefor, was not entitled to the aid of a court of equity to give effect to the first clause of the covenant in disregard of the second clause, which was entitled to equal weight with the first. (Woodward v. Gyles, 2 Vern. 119; Skinner v. White, 17 Johns. 357,369; Carnes v. Nesbitt, 7 H. & N. 160; S. C., Id. 778, 781, 782; Sainter v. Ferguson, 1 McN. & G. 286; Vincent v. King, 13 How. Pr. 234; Barnes v. McAllister, 18 Id. 534; Nessle v. Reese, 29 Id. 382, 383; French v. Macale, 2 D. & W. 269; Long v. Bowring, 33 Beav. 585; Dooley v. Watson, 1 Gray, 414; Howard v. Hopkins, 2 Atk. 371; Clarke v. Mason, 1 Denio, 516; Hardy v. Martin, 1 Cox, 64, note; Chase v. Allen, 13 Gray, 42; Leary v. Lafflin, 101 Mass. 344; Linde v. Thompson, 2 Allen, 456; Mundy v. Culver, 18 Barb. 336; Lea v. Whitaker, L. R., 8 C. P. 70; 2 Vern. 119; 1 McN. & G. 286; 7 H. & N. 778; 14 Ves. 468; 13 How. Pr. 234; 18 Id.534; 29 Id. 382; French v. McCale, 2 D. & W. 279, 284; City of London v. Pugh, 4 Bro. Par. Cas. 395; 2 Story's Eq. Jur. [[12th ed.], § 1318; Cushing v. Drew, 97 Mass. 445; Clement v. Cash, 21 N.Y. 253, 256, 257.) The covenant in question not being made a condition of the grant, and containing no words of re-entry or forfeiture, and being strictly inter partes, no rights of neighboring owners or of the public being affected by it, operated simply as a continuing agreement, binding upon the parties to it, and upon their respective successors in title. (Gilbert v. Peteler, 38 N.Y. 165; Trustees v. Lynch, 70 Id. 440.) If an easement was created in, or a servitude impressed

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upon the strip of land in question by the covenant under consideration, no user was necessary to strengthen it, or give it validity. (Child v. Chappell, 9 N.Y. 246, 256; Brouwer v. Jones, 23 Barb. 153; Barrow v. Richard, 8 Paige, 351.)

Samuel Hand for respondent. The covenant of Smith, in the deed of Howland to him, bound him and the defendant as his assignee, in favor of the plaintiff as assignee of Howland's other land, in favor of which the covenant was made. (Atlantic Dock v. Leavitt, 54 N.Y. 35; Trustees of Watertown v. Cowen, 4 Paige, 510; Roberts v. Levy, 3 Abb. [ N. S.] 311; Co. Litt. 230, Butler's note 1.) Even if the covenant did not run with the land, and the plaintiff could have no action at law upon it, yet equity would intervene in his favor to restrain its violation, especially when the defendant, as in this case, has notice of the covenant, and his deed is expressly subject to it. (Atlantic Dock v. Leavitt 54 N.Y. 35; Trustees of Col. College v. Lynch, 70 Id. 440; Clark v. Martin, 49 Penn. St. 296; Mann v. Stephens, 15 Simons, 377; Whatman v. Gibson, 9 Id. 196; High on Injunc. [ 2d. ed.], § 851; Washburn on...

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