Clarke v. Devoe

• Decision Date: 14 January 1891
• Citation: 26 N.E. 275,124 N.Y. 120
• Parties: CLARKE v. DEVOE.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 120

26 N.E. 275

CLARKE

v.DEVOE.

Court of Appeals of New York, Second Division.

Jan. 14, 1891.

Appeal from an order of the general term of the supreme court in the first judicial department, reversing a judgment entered upon the verdict of a jury. Action to recover damages for the breach of a covenant contained in a deed from the defendant to a grantor of the plaintiff. In April, 1857, the defendant owned two adjoining parcels of land in the city of New York, with the buildings thereon, known as ‘No. 22 and No. 24 West Tenth Street,’ and on the 15th of that month he conveyed the premises known as ‘No. 24’ to one Robert Clarke by a deed which contained the following covenant, viz.: ‘And the said Moses Devoe, being also the owner of the adjoining lot, known and distinguished as ‘No. 22 Tenth Street,’ for himself, his heirs, executors, administrators, and assigns, does hereby covenant to and with the said party of the second part, his heirs, executors, administrators, and assigns, that he will not erect or cause to be erected on said lot No. twenty-two Tenth street, any building which shall be regarded as a nuisance, or which shall be occupied for any purpose which may render it a nuisance.' Subsequently, the plaintiff, by various mesne conveyances, acquired the title of said Robert Clarke to No. 24, and before the 8th of July, 1885, when this action was commenced, she also acquired by several assignments from her respective grantors all claims or causes of action to them respectively belonging by reason of any violation of said covenant by the defendant. On the 24th of June, 1863, the defendant conveyed No. 22 to one Johnston, without alluding to said covenant, and without any restriction or limitation upon the uses to which the premises might be devoted. Prior to January 1, 1864, a building was erected by said Johnston on No. 22, which for several years was used as a private stable, but was afterwards converted into a livery stable, and so used, according to the verdict of the jury, as to constitute a nuisance. This action was brought to recover damages from the defendant for violating the covenant aforesaid by permitting such nuisance to exist upon said premises. Upon the trial it appeared that the defendant neither caused nor permitted the nuisance, but that the same was created and maintained by his grantees and their lessees without his consent.

David Gerber, for appellant.

Freling H. Smith, for respondent.

VANN, J., ( after stating the facts as above.)

This is not an action in equity to restrain the continuance of a nuisance, nor in tort to recover the damages caused by a nuisance, but is simply for a breach of the covenant set forth in the foregoing statement. It is not brought against one who personally, or through his agents or tenants, created the nuisance, nor against one who owned the property at any time when the nuisance existed thereon, but against a former owner of two city lots, who in selling one, many years ago, made said covenant with reference to the other, which he soon conveyed away, and since then he has had no interest in either. The covenant, therefore, is not only the foundation of the plaintiff's claim, but is the limit of the defendant's liability. It is not denied that the plaintiff had a remedy for the nuisance against those who caused it, independent of any covenant; but this action depends strictly upon the covenant, and can be maintained only by showing a breach thereof. A covenant is simply a contract of a special nature, and the primary rule for the interpretation thereof is to gather the intention of the parties from their words, by reading, not simply a single clause of the agreement, but the entire context, and where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met. Quackenboss v. Lansing, 6 Johns. 49;Duryea v. Mayor, 62 N. Y. 592, 597;Insurance Co. v. Clinton, 66 N. Y. 326; Platt, Cov. 136. The deed under consideration is in the ordinary form, except that between the habendum clause and the usual covenants contained in modern conveyances the paragraph in question was inserted, consisting of a single sentence. This covenant is purely negative in character, and has no relation to the land conveyed, but relates wholly to other premises owned by the covenantor, and in which the covenantee had no interest. There was no agreement that the premises should not be used for certain purposes, or that they should be free from nuisances forever. There was no corresponding covenant by the grantee restricting the use that he might make of the...