Evangelical Lutheran Church of the Ascension of Snyder v. Sahlem

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CARDOZO
• Citation: Evangelical Lutheran Church of the Ascension of Snyder v. Sahlem, 254 N.Y. 161 (N.Y. 1930)
• Decision Date: 08 July 1930
• Parties: EVANGELICAL LUTHERAN CHURCH OF THE ASCENSION, OF SNYDER, NEW YORK, Respondent, v. PHILLIP SAHLEM et al., Appellants.

254 N.Y. 161

172 N.E. 455

EVANGELICAL LUTHERAN CHURCH OF THE ASCENSION OF SNYDER

v.SAHLEM et ux.

Court of Appeals of New York.

July 8, 1930.

Action by the Evangelical Lutheran Church of the Ascension of Snyder against Philip Sahlem and wife. A declaratory judgment of the Special Term for plaintiff was affirmed by the Appellate Division in the Fourth Judicial Department (227 App. Div. 841, 237 N. Y. S. 768), and the defendants appeal by permission.

Judgments reversed, and judgment rendered for defendants.

O'BRIEN, J., dissenting.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Gottfried H. Wende, of Buffalo, for appellants.

Wortley B. Paul and John G. Lesswing, both of Buffalo, for respondent.

CARDOZO, C. J.

The plaintiff, a religious corporation, has sued the owner of a parcel of real property in the village of Snyder, the owner's wife being joined with him as a defendant, to procure a declaratory judgment adjudging that restrictive covenants affecting the use of a parcel belonging to the plaintiff are no longer in effect, with a prayer for general relief.

The Supreme Court at Special Term refused to declare that the covenants had spent their force, adjudged, on the contrary, that they were valid and subsisting, but coupled that adjudication with one to the effect that the defendants were not entitled to hinder the projected use through the aid of an injunction, and were to be limited in respect of remedies to an action for damages at law.

The Appellate Division unanimously affirmed, but certified the case for the judgment of this court.

In September, 1923, a tract of land in the village of Snyder, divided into 128 lots, was subjected to restrictive covenants whereby the only building to be erected on any of the lots was to be ‘one single-family dwelling with its usual private barns, garages or other out-buildings to be used only for private residential purposes.’ The covenants were so framed as to run with the land in respect of benefit and burden (Bristol v. Woodward, 251 N. Y. 275, 285, 167 N. E. 441), and were to continue in force for a term of twenty years.

The defendant Philip Sahlem, who will hereafter be referred to as the defendant, became the owner of two of these lots, and placed upon them a private dwelling in which he made his home. The dwelling had been standing there for years when the plaintiff, a Lutheran Church conceived the plan of building a church edific upon part of the restricted tract. Before purchasing its lots, which are directly opposite to those owned by the defendant, the plaintiff, knowing of the covenants, made application to the lot owners to vary the restrictions. The defendant, though a member of the same religious communion, would not consent to the variance. He took the position that he had bought his lots for the purpose of a home, and that his peace and comfort would be disturbed by a meeting house across the way with the parking of cars, the tooting of horns, and the invasions of privacy attendant upon crowds. All the other lot owners were willing to modify the covenants by permitting the church to be erected, and signed consents accordingly.

The plaintiff, armed with these consents, decided to take title to the land and bid defiance to its neighbor. It signed a contract of purchase in February, 1928, and gave written notice to the defendant that the church would be erected. The defendant retorted with a warning that the builder would go forward at its peril. A deed of conveyance was accepted the next month. It recited the restrictions, and stated that the title to be conveyed to the grantee was subject thereto. The grantee promptly thereafter caused plans to be made for a parish house and church, made a contract with a builder for the construction of the parish house, and began the work of excavation. At this point, apparently, its courage began to fail. Once more it wrote to the defendant, insisting that, with all the other lot owners compliant, the defendant ‘ought not to have the right to hinder the progress of an institution attempting to do humanitarian work.’ Once more the defendant stood his ground. Self-help was succeeded at this stage by combat in the courts. The plaintiff, renouncing its attitude of definance, checked the progress of the work, and invoked the aid of the judicial process for a declaration of its rights.

The judgment rendered in its favor eviscerates the restrictive covenants while declaring them alive. It does this on the ground that the damages occasioned to the defendant by the building of a church will be ‘slight and inconsequential’ in comparison to those occasioned to the plaintiff if the use shall be enjoined. There is neither finding nor proof that the character of the neighborhood has so changed as to defeat the object and purposes for which the restrictions were imposed. Business has moved to some extent into blocks not far away which once were used for dwelling. The tract subjected to these covenants remains, however, what it has been since the restrictions were established, a place for homes exclusively. Evans v. Fox, 194 Mass. 513, 518, 80 N. E. 587,9 L. R. A. (N. S.) 1039,11 Ann. Cas. 171;Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417, 426, 136 N. E. 813;Allen v. Massachusetts Bonding & Insurance Co., 248 Mass. 378, 385, 143 N. E. 499, 33 A. L. R. 669;Pagenstecher v. Carlson, 146 App. Div. 738, 740, 131 N. Y. S. 413. Indeed, there is no claim by any one that the plaintiff is at liberty, ignoring the covenants altogether, to devote the land in its ownership to business uses generally. By concession, its immunity will end if its building is not a church. The basis of this judgment, denying to the defendant owner the aid of equitable remedies, is not the presence of changed conditions extracting from the covenants their original vitality and reducing them to barren archaisms. The covenants are as useful in preserving to this tract the quality of a home section as they were at the beginning. The basis of this judgment is a holding that an owner, anxious to improve his land in knowing violation of a covenant still subsisting, may have the judgment of a court of equity advising him in advance that, so far as equity is concerned, he may go forward with impunity if only on a balancing of losses the loss to the wrongdoer appears to be greater than his victim's.

By the settled doctrine of equity, restrictive covenants in respect of land will be enforced by preventive remedies while the violation is still in prospect, unless the attitude of the complaining owner in standing on his covenant is unconscionable or oppressive. Relief is not withheld because the money damage is unsubstantial or even none at all. Trustees of Columbia College v. Lynch, 70 N. Y. 440, 453,26 Am. Rep. 615;Trustees of Columbia College v. Thacher, 87 N. Y. 311, 316,41 Am. Rep. 365;Rowland v. Miller, 139 N. Y. 93, 103,34 N. E. 765,22 L. R. A. 182;Forstmann v. Joray Holding Co., Inc., 244 N. Y. 22, 31, 154 N. E. 652;Star Brewery Co. v. Primas, 163 Ill. 652, 45 N. E. 145; Lord Manners v. Johnson (1875) L. R. 1 Ch. Div. 673. ‘If the construction of the instrument be clear and the breach clear, then...