Baumert v. Malkin

• Decision Date: 27 February 1923
• Citation: 139 N.E. 210,235 N.Y. 115
• Parties: BAUMERT et al. v. MALKIN et al.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 115

139 N.E. 210

BAUMERT et al.

v.MALKIN et al.

Court of Appeals of New York.

Feb. 27, 1923.

Action by Frank J. Baumert and others against Manfred Malkin, conducting business under the trade-name and style of the ‘Malkin Music School,’ and others. From a final judgment of the Appellate Division (201 App. Div. 849,193 N. Y. Supp. 925) unanimously affirming a judgment dismissing the complaint, plaintiffs appeal. Judgment dismissing complaint and interlocutory judgment sustaining defendants' demurrers reversed, and demurrers overruled, with costs in all courts and with leave to defendants to withdraw demurrers and plead over within 20 days on payment of costs.

Appeal from Supreme Court, Appellate Division, First Department.

Charles Adkins Baker and Herman Aaron, both of New York City, for appellants.

Taylor More, of New York City, for respondents.

HISCOCK, C. J.

This appeal from a final judgment dismissing plaintiff's complaint brings up for review an interlocutory judgment sustaining defendants' demurrer to that pleading. The question presented is the one whether the complaint states a cause of action, and this general question is narrowed to the further one involving the meaning of what, with sufficient accuracy, may be termed a restrictive covenant applicable to lands owned or occupied by the defendants.

It appears from the complaint that in 1887 the owners of an entire block of land in the upper part of New York being about to sell portions thereof made a contract with the proposed purchasers imposing certain burdens and restrictions upon the uses to which said lands should be devoted. This contract, which was properly recorded, amongst other things provided as follows:

‘Whereas it is the intention of all the parties hereto that the entire block is to be restriced so that the first buildings to be erected on said block shall be first-class private dwellings designed for the use of one family only, * * * now, therefore, this agreement witnesseth:

‘That * * * it is agreed by and between the parties hereto that that portion of the block still owned by said parties of the first part (the vendors) shall be and hereby is restricted so that the buildings to be erected thereon shall be first-class private dwellings designed for the use of one family only, or a first-class church or churches.

‘And the said parties of the second part hereby agree that they will commence the improvement of the lots severally bought by them within six months from the date hereof and continue the same with due diligence to completion.

‘This agreement is to be held binding upon the heirs and assigns of the respective parties hereto.’

Under a chain of conveyances and the will of her husband, the defendant Van Santvoord has become the owner of that portion of the premises concededly bound by the above agreement, which is known as No. 10 West 122d street. In her chain of title the restrictive agreement above referred to is expressed by a covenant upon the part of one or more grantees through whom she derives title ‘for himself, his heirs and assigns that the first buildings to be erected on said premises shall be first-class private dwellings erected for the use of one family only.’

[1] In accordance with said agreement and covenant, there was erected and is still standing on said premises a structure, ‘the first building,’ which complies with the covenant to the extent that it is in form a first-class private dwelling and designed for the use of one family only. Said defendant, however, has rented said premises to her codefendant Malkin, who, under the title the ‘Malkin Music School,’ is using the building for the purpose of conducting the business of teaching music, and who, in connection therewith, gives various forms of entertainment, and all of which, it is alleged, result in disturbing the ‘peace, quiet and comfort’ of the neighborhood through the commission of ‘disturbing, objectionable and discordant sounds and noises arising from vocal and instrumental practice and tuition’ and the concerts ‘have caused great throngs of people to gather in and approach said premises.’

The plaintiffs, subject to the restrictive agreement and covenant set forth above, are the owners of two lots adjoining the defendants' premises which are used for private residences, and they allege that their enjoyment of their property is greatly affected and impaired by the use being made by the defendants of their premises and which is not only contrary to the restrictive covenant above mentioned but is the only exception to the use otherwise being made of lands in the neighborhood for private residential purposes. Having protested against such employment of their premises by the defendants without avail, the relief is demanded that the latter be enjoined from such use on the ground that it is a violation of the restrictions covering the same and of the rights of plaintiffs.

The ‘first building’ having been erected on defendants' premises, we are not concerned with the burdens in that respect imposed upon grantees. We are only concerned with the nature and extent of the restrictive provision binding defendants respecting the use of that building and to the benefit of which plaintiffs are indisputably entitled. This being so, the complaint which has been summarized clearly enough foreshadows what the dispute is between the parties concerning the meaning and effect of such restriction. Plaintiffs insist that the meaning is that the first buildings to be erected shall not only be private dwellings in form and structure but that they shall be actually used as such. The defendants, on the other hand, contend that their duty affirmative and negative has been fulfilled when a building of the prescribed character has once been erected and that the use to which it shall be thereafter put is entirely subject to the will of the owner. The dispute is a narrow one involving the meaning of a few words and does not require long discussion. The defendants are entirely correct in asserting that we approach its consideration controlled by the general principle that restrictive covenants are to be construed strictly against those who formulate and impose them and that plaintiffs carry the burden of demonstrating that their version of the present covenant is sustained by a plain and natural interpretation of its language. Not forgetting at all these general rules, we nevertheless have reached the conclusion that plaintiffs' claim successfully carries the burden which is imposed upon it, and that their interpretation of the covenant in question survives the tests by which it must be judged.

[2] Of course, the parties who made the agreement covering these lands and caused to be inserted in their deeds the restriction which has been...