Flynn v. New York, W.&B. Ry. Co.

• Decision Date: 02 May 1916
• Citation: 112 N.E. 913,218 N.Y. 140
• Parties: FLYNN v. NEW YORK, W. & B. RY. CO. et al. BRADY v. NEW YORK, W. & B. RY. CO.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 140

112 N.E. 913

FLYNN

v.NEW YORK, W. & B. RY. CO. et al.

BRADY

v.NEW YORK, W. & B. RY. CO.

Court of Appeals of New York.

May 2, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action for injunction by Michael W. Flynn against the New York, Westchester & Boston Railway Company and another, and action for injunction by Edwin B. Brady against the New York, Westchester & Boston Railway Company, and another. From judgments of the Appellate Division (160 App. Div. 906, 907,144 N. Y. Supp. 1106, 1116), affirming judgments in favor of the plaintiffs, the defendant New York, Westchester & Boston Railway Company appeals. Judgments affirmed.

Louis Marshall, of New York City, for appellant.

Edwin L. Kalish, of New York City, for respondents.

POUND, J.

In 1906 one Prince owned a tract of land in the city of New Rochelle, Westchester county, which he laid out on a map in 114 lots, fronting on streets. As an inducement to prospective purchasers, and in pursuance of a plan to restrict the lots against nuisances and trades and make it exclusively a residence district, all of the lots thus laid out were sold and conveyed by deeds containing the following covenants:

‘And the said party of the second part does covenant and agree that the grant and conveyance as aforesaid shall be subject to the following covenants, conditions and restriction, which shall be binding upon them, their heirs, executors, legal representatives and grantees of the respective parties.

‘That the said party of the second part shall not build or permit to be built on said premises any house or dwelling of a value less than $4,500 or being less than two and one-half stories in height, or of the style known as ‘flat roof.’

‘No part of said premises shall be used for any hospital, insane, inebriate or other asylum, public or private, or cemetery or place of burial.

‘No building or structure for any business purpose whatsoever shall be erected on said premises.

‘No part of any structure erected shall be within fifteen feet of any street or street line upon which the lot or lots abut, except the steps, which may project a reasonable distance beyond the structure.

‘No dwelling shall be erected on any plot less than two lots.

‘No part of any barn, stable or other structure or structures of any kind or description erected upon said premises shall be within sixth feet of the line of the street or avenue on which the lots front, or within twenty-five feet of any side street; nor shall there be erected on any part of paid lot any slaughterhouse, smith shop, forge, furnace, steam engine, brass foundry, nail, iron or other foundry or any manufactory of gunpowder, glue, varnish, vitrior, ink, turpentine, or for the tanning, dressing or preparing skins, hides or leather, or any manufactory whatever; or any ale house, brewery, distillery, saloon. liquor store, hotel or inn, or livery stable, or any other obnoxious, dangerous or offensive business or trade or any building of the character or description known as a tenement house. There shall be no toilet outhouse of any kind or description upon the premises. No closed fence shall be erected on said premises, excepting on the rear line thereof, and that no fence shall be erected on said premises more than four feet high, excepting on the rear line thereof.

‘No poultry shall be kept upon any part of the premises unless such poultry is retained or inclosed in proper runds or inclosures.

‘It being understood and agreed that said covenants and conditions shall run with the land, and shall be enforceable both as covenants and conditions, with the right of re-entry in case of breach thereof.’

Appellant purchased from Prince's grantees lots numbered from 1 to 38, inclusive, running across the entire southern part of the tract, subject to the above restrictions. Respondent Flynn purchased lots 107 and 108, on which he has erected a house directly across the street from appellant, and the respondent Brady purchased lots 39-42, inclusive, immediately adjacent to appellant's premises. The railway of appellant was built across the restricted lands owned by it, partly on an embankment 25 feet above the surface, which is next to the Brady lots, and partly in an open cut, 17 feet in depth, which is in front of the Flynn property. The railroad is equipped as high-speed electric, operating many trains daily, and its maintenance and operation render respondents' property less valuable than it would be if appellant's property were used execlusively for private dwelling purposes.

These actions were instituted to restrain the appellant from constructing and operating its road across said lots, but at the time of the trial the railroad was in operation. The judgments appealed from restrain the maintenance by the appellant of its erections and structures upon the restricted land owned by it and the operation of its road, unless appellant pays Flynn $3,370 and Brady $2,000, respectively, as damages by reason of its violation of the restrictive covenants.

[1][2][3] Appellant contends: (1) That the restrictive covenants upon which responents rely are, so far as they prohibit the construction and operation of a railroad,...