Amerman v. Deane

• Decision Date: 19 April 1892
• Citation: 132 N.Y. 355,30 N.E. 741
• Parties: AMERMAN v. DEANE.
• Court: New York Court of Appeals Court of Appeals

132 N.Y. 355

30 N.E. 741

AMERMAN

v.DEANE.

Court of Appeals of New York, Second Division.

April 19, 1892.

Appeal from superior court of New York city, general term.

Action by Mary V. Amerman against Bertha A. Deane for an injunction and damages.From a judgment of the general term reversing a judgment for plaintiff, the latter appeals.Modified.

W. J. Townsend, for appellant.

Cephas Brainerd, for respondent.

HAIGHT, J.

This action was brought for a permanent injunction and for damages.Clarence S. Brown was the former owner of a block of land in the city of New York, bounded on the north by Sixty-Fourth street, on the east by Ninth avenue, on the south by Sixty-Third street, and on the west by Tenth avenue.He made conveyances of separate parts of such block to different parties, all of which conveyances were made subject to certain restrictions and covenants, among which was that the grantee, his heirs and assigns, would not at any time thereafter erect, suffer, or permit upon the premises thereby conveyed, or any part thereof, any tenement house; and it was agreed between the parties to such conveyance that such covenants should run with the land.The defendant, through various mesne conveyances from Brown, under deeds containing the restriction and covenant above mentioned, has become the owner of a lot on the southeast corner of Tenth avenue and Sixty-Fourth street.The plaintiff, in like manner, has become the owner of a private residence on the south side of Sixty-Fourth street, distant 42 feet and 9 inches easterly from the rear of defendant's lot.Since the purchase by the plaintiff of her residence the defendant has erected upon her lot a tenement house, in violation of the restriction and covenant alluded to.The building contains a frontage of 75 feet on Tenth avenue and 95 feet on Sixty-Fourth street.It is arranged for three stores fronting upon the avenue, and three stores fronting upon Sixty-Fourth street, with four stories above the first floor, each arranged for the accommodation of four families.Flat or tenement houses of the ordinary description have been erected for a considerable distance below Sixty-Third street on both sides of Tenth avenue; also; on the opposite side of Tenth avenue, between Sixty-Third and Sixty-Fourth streets; also, upon the entire block fronting on the easterly side of Tenth avenue, from Sixty-Fourth street to Sixty-Fifth strect; also, in the middle of the block between Ninth and Tenth avenues, on the northerly side of Sixty-Third street.Ordinary tenement houses have been built on the southerly side of Sixty-Third street, from Ninth avenue westwardly, covering more than half of the block.Flat or tenement houses have been built opposite the premises of the plaintiff on the northerlyside of Sixty-Fourth street, and like houses have been built for a considerable distance northward on both sides of Tenth avenue.On the north westerly corner of Tenth avenue and Sixty-Fifth street is an establishment for the manufacture of illuminating gas; and on the block below, on the westerly side of Tenth avenue, are carpenter shops, liquor and beer saloons, blacksmith shops, and one tenement or flat house.The trial court refused a permanent injunction, but awarded damages to the plaintiff in the sum of $1,500, and an injunction restraining the defendant from renting the building upon her lot to any tenant until such damages, together with the costs of the action, shall be paid.

The facts to which we have alluded were found by the trial court, and are such as to entitle the plaintiff to an injunction, were it not for the fact that the surrounding neighborhood has been chiefly built up and occupied with flat or tenement houses.The defendant's building is a large one, constructed at considerable expense, and is in a neighborhood devoted chiefly to the residence of people for which the defendant's building was designed.If enjoined from using the same for that purpose, the defendant must necessarily suffer damage greatly in excess of any which is likely or possible to be sustained by the plaintiff.In the case of Trustees v. Thacher, 87 N. Y. 311, it was held that while a court of equity has jurisdiction to enforce the observance of covenants made by an owner of lands in a city, with an adjoining owner, in consideration of similar reciprocal covenants on the part of the latter, restricting the use of the lands to the purposes of private residences, the exercise of this authority is within its discretion, and where there has been such a change in the character of the neighborhood as to defeat the object and purposes of the agreement, and to render it inequitable to deprive such owner of the privilege of conforming his property to that character, such relief will not be granted.In High on Injunctions, (section 22,) it is said, if it is apparent, upon an application for an injunction, that the relief sought is disproportioned to the nature and extent of the injury sustained, or likely to be sustained, the court will decline to interfere.And again, at section 1158, where the character and condition of the adjoining lands, with...