Biggs v. Sea Gate Ass'n

• Decision Date: 02 June 1914
• Citation: 211 N.Y. 482,105 N.E. 664
• Parties: BIGGS v. SEA GATE ASS'N.
• Court: New York Court of Appeals Court of Appeals

211 N.Y. 482

105 N.E. 664

BIGGS

v.SEA GATE ASS'N.

Court of Appeals of New York.

June 2, 1914.

Appeal from Supreme Court, Appellate Division, Second Department.

Suit by Helen W. Biggs against the Sea Gate Association. From an order of the Appellate Division (152 App. Div. 918,138 N. Y. Supp. 53), reversing a judgment in favor of plaintiff, she appeals. Reversed, and judgment of the Special Term affirmed.

See, also, 154 App. Div. 946,139 N. Y. Supp. 1116.Walter W. Irwin, of New York City, for appellant.

Charles J. McDermott, of New York City, for respondent.

MILLER, J.

This action was brought to enjoin the defendant from cutting off the connection of plaintiff's residence with its sewer and water pipes. The Appellate Division reversed on the law. A brief statement of some of the essential facts found by the trial court will conduce to a proper understanding of the question of law involved. In 1892 the Norton Point Land Company was incorporated. It acquired and undertook the development of the land on the western point of Coney Island, now known as Sea Gate . For that purpose it laid out streets and installed sewer and water systems. It filed in the office of the registrar of Kings county a map of the property. It published and circulated divers circulars, booklets, and advertisements to attract purchasers, containing statements to the effect that complete systems of sewer and water and gas mains had been constructed, for which there was to be no assessment, and representing in effect to purchasers that they would have the right ot connect their properties with said systems without any assessment for the cost thereof. In 1897 one McAlley, the plaintiff's grantor, purchased a lot on Beach Fiftieth street, knowing of and relying upon said statements and representations. The defendant was organized as a membership corporation on the 15th of July, 1899. Owners of lots within the territory originally owned by the Norton Point Land Company were entitled to membership. On the 26th of February, 1901, the said land company conveyed to the defendant, among other things, the ocean beach, about 100 lots of land, and all the right, title, and interest of the land company in and to the land in the streets shown on the map, filed as aforesaid, together with the improvements, subject ‘to any easements or rights now existing in respect to any of the same and to an easement or easements in favor of any and all of the lands still remaining the property of the party of the first part [the grantor] and of any of the owners or occupants of any of such land at any time of the same character and extent as is appurtenant to like lands heretofore sold and conveyed by the party of the first part.’ On the 3d day of June, 1901, said McAlley purchased another lot on Beach Fiftieth street of the Norton Point Land Company. The deeds to McAlley contained covenants against nuisances. On the 22d of December, 1908, the plaintiff purchased from the executor of McAlley the said lots thus acquired by him. On the 8th of January, 1909, a resolution was passed by the directors of the defendant association instructing its president to notify the members ‘that it is the purpose of the directors to refuse to consent to the building of houses at Sea Gate for boarding house purposes.’ Thereafter a circular letter was sent out, stating among other things that ‘the directors had decided to withhold the consent to, and in all possible ways to prevent, the erection or leasing of any other or additional houses in Sea Gate for boarding house, lodging house, inn or hotel purposes.’ That circular was received by the plaintiff after February 1, 1909, at which date she entered into a contract for the erection of a building on her lots. There were no sewer or water mains in Beach Fiftieth street when the plaintiff purchased her property. A sewer outlet, however, had been laid within eight feet of the rear of said lots. On March 10, 1909, the plaintiff's building contractor applied for and obtained a permit to connect with the sewer and water systems, and the plaintiff paid therefor the sum of $20. The sewer connection was made with the outlet at the rear of the lots, and a water pipe was laid in Beach Fiftieth street by the defendant to connect with the main in Surf avenue 60 feet from the plaintiff's land. The said permits were issued by the defendant upon a representation made by the plaintiff's husband, who was acting as her agent, that the house to be erected on the land was to be used as a private residence, and not as a boarding house. Upon the erection of her house, the plaintiff conducted therein the business of a boarding house. On the 25th of June, 1909, the defendant notified the plaintiff that it would cut off the connection of her house with its sewer and water supply pipes, and thereupon this suit was brought.

The defendant justifies its action upon the ground that the plaintiff obtained the permit to connect with the sewer and water systems upon the misrepresentation of her husband that the premises were not to be used for a boarding house, and upon that theory the Appellate Division...