Batchelor v. Hinkle

• Decision Date: 24 February 1914
• Citation: 104 N.E. 629,210 N.Y. 243
• Parties: BATCHELOR v. HINKLE et al.
• Court: New York Court of Appeals Court of Appeals

210 N.Y. 243

104 N.E. 629

BATCHELOR

v.HINKLE et al.

Court of Appeals of New York.

Feb. 24, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Rosanna Batchelor against Eugene E. Hinkle and another. From a judgment of the Appellate Division (149 App. Div. 910,133 N. Y. Supp. 501) affirming a judgment for plaintiff, defendants appeal. Reversed.

In the year 1849 the owners of the land lying in the two blocks bounded by Broadway, Twenty-Sixth street, Sixth avenue, and Twenty-Fourth street, in the city of New York, entered into an agreement for the purpose of making the property a desirable location for residences and buildings of the first class. The parties to the agreement covenanted and agreed for themselves, their heirs and assigns, not to carry on, or permit to be carried on, any noxious or offensive trade or business on their respective lots, and furthermore covenanted and agreed as follows: ‘No building shall be erected upon the front of the lots in said two blocks which shall not be built of brick, stone or marble, and cover the whole width of the lot, and which shall not be at lease three stories high above the street, and also that the buildings to be erected on Twenty-Fourth, Twenty-Fifth and Twenty-Sixth streets upon said two blocks shall be set back uniformly on a line five feet from the sides of said streets respectively, so as to form courtyards of five feet wide on each side of the said two blocks upon the said street.’

The plaintiff and the defendants in this action claim under the Farmers' Loan & Trust Company, one of the parties to the contract mentioned, and their deeds are made subject to the restrictions contained in the agreement. The plaintiff's property is known as No. 26 West Twenty-Sixth street, and she became the owner thereof in 1902. The defendants' property, which lies further from Broadway, is known as Nos. 38-42 West Twenty-Sixth street, and the defendants became the owners thereof in 1908.

The defendants, upon acquiring title to the lands owned by them, set about to erect thereon a loft building 12 stories high, covering the whole of their lots, with the front walls standing on the street line, and including the courtyard space, whereupon the plaintiff gave the defendants notice in writing to comply with the covenant, and erect their building five feet back from the street.

The plaintiff commenced this action against the defendants to restrain them from building out to the street line, and applied for a temporary injunction in the action. The defendants then ceased work on that part of the building which encroached on the courtyard space. The application for a preliminary injunction was denied, and on the first trial of the action which followed the plaintiff's complaint was dismissed, and then the defendants proceeded with the work of construction and completed their building. The judgment was, however, reversed in the Appellate Division, and a new trial ordered. The second trial was substantially in favor of the defendants, but the judgment was again reversed in the Appellate Division. Upon the third trial the court found the facts as they now appear in the record, but in deference to the opinion of the Appellate Division granted a judgment in favor of the plaintiff, which the Appellate Division has affirmed. From that determination this appeal is taken.Charles A. Collin, of New York City, for appellants.

Payson Merrill, of New York City, for respondent.

CUDDEBACK (after stating the facts as above).

At the time the agreement of 1849 was made, the property affected thereby was vacant, but it was the design of the parties to the contract to make the land a desirable location ‘for residences and buildings of the first class.’ To accomplish that purpose they provided, among other things, that the buildings erected on the land should be ‘set back uniformly on a line five feet from the sides of the said streets respectively so as to form courtyards of five feet wide on each side of the’ streets. The courtyards, as the finding is, were for ornamental purposes. Thereafter the property was improved and built upon in the manner contemplated in the agreement. The dwelling houses constructed were the brownstone or brick structures common is New York, three or four stories high, with the usual high stoop leading to the parlor floor, and the usual basement with the courtyard in front thereof, inclosed by a stone coping or iron railing setting it off from the sidewalk proper.

Between the time when the contract of 1849 was made, and the time when the parties to this action acquired title, a period of more than half a century, the neighborhood underwent a change. Business encroached upon it, and the land to which the covenant related was no longer a desirable location for residences. The old dwellings in some instances were turned into boarding houses, and in other instances were remodeled for business purposes. The old courtyards were removed when the buildings were remodeled, and the five-foot courtyard space was used in connection with the business to which the premises were put. The plaintiff's property has been so transformed. She has removed the old high stoop and courtyard, put a new front in the structure five feet back from the sidewalk, and used as space for a vault the space reserved for a courtyard. Some few years later the property in the block became too valuable to be used as boarding houses, and the old buildings were too small to be used profitably for business purposes. At about the time of the commencement of this action there was a demand in the neighborhood for modern structures twelve or more stories high. The ‘setback’ covenant is a detriment to property on which such tall buildings are to be erected, for the reason that it curtails the floor space in the building by which the rental value is fixed. The defendants have erected a 12-story building on their lots, and in order to get as much floor space as possible and better light in the rear, have carried the building out to the street line. The defendants were...