Forstmann v. Joray Holding Co. 

• Decision Date: 30 November 1926
• Citation: 154 N.E. 652,244 N.Y. 22
• Parties: FORSTMANN et al. v. JORAY HOLDING CO., Inc., et al.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 22

154 N.E. 652

FORSTMANN et al.

v.JORAY HOLDING CO., Inc., et al.

Court of Appeals of New York.

Nov. 30, 1926.

Action by Julius Forstmann and another against the Joray Holding Company, Inc., and another. From a judgment of the Appellate Division (216 App. Div. 135, 215 N. Y. S. 65) reversing on the law and facts a judgment of the Special Term dismissing the complaint on the merits, and directing a judgment for plaintiffs, defendants appeal.

Reversed, and judgment of the Special Term affirmed.

Appeal from Supreme Court, Appellate Division, First department.

Nathan L. Miller, John Burlinson Coleman, H. Bartow Farr, Abram J. Rose, and William K. Hartpence, all of New York City, for appellants.

Julius Henry Cohen and Theodore B. Richtor, both of New York City, for respondents.

POUND, J.

This action was brought to obtain a mandatory injunction requiring the defendants to remove a two-story business building erected by the defendant Joray Holding Company, Inc., on real property on the northwest corner of Madison avenue and Seventieth street in the borough of Manhattan, New York City, conveyed to the defendant Edward R. Finch by deed bearing date March 3, 1924. The building was erected after July 1, 1924, when the premises were leased by the defendant Finch to the defendant Holding Company at a cost of between $43,000 and $44,000. The plaintiffs seek to compel the removal of the building under a restrictive covenant contained in a prior deed conveying the premises, subject to which the defendant Finch took title. The restriction expires on January 1, 1929. The deed under which the defendant Finch holds title to the property in question is subject to the following restriction:

‘The said party hereto of the second part, for him (her) self, his (her) heirs and assigns, hereby covenants and agrees to and with the said party of the first part, its successors or assigns, that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the first day of January, nineteen hundred and twenty-nine (1929) erect or permit upon the above granted premises, or any part thereof,any building, except a dwelling house for a single family, and further that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the said first day of January, nineteen hundred and twenty-nine (1929) erect or permit upon the above granted premises any such building, or any other structure, or any extension thereof, or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the center line of the block between Seventieth and Seventy-First streets.

‘These covenants shall be deemed covenants running with the land and binding upon future owners thereof, but shall expire and terminate by limitation on the first day of January nineteen hundred and twenty-nine (1929).

‘And the said party of the first part, for itself, its successors and assigns, doth hereby covenant and agree to and with the said party of the second part, his (her) heirs or assigns, that neither it, the said party of the first part, nor its sucessors or assigns, owning any part of the land bounded by Seventieth street, Madison avenue, Seventy-First street and a line parallel to Fifth avenue, and distant one hundred and seventy-five feet easterly therefrom shall or will, at any time, prior to the first day of January, nineteen hundred and twenty-nine (1929), erect or permit upon any part of the land last above described, any building except dwelling houses each for a single family; and further, that neither the said party of the first part, nor its successors or assigns, shall or will, at any time prior to the first day of January, nineteen hundred and twenty-nine (1929) erect or permit upon any part of the land last above described, any such building or any other structure, or any extension thereof, or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the center line of the block between Seventieth and Seventy-First streets; and further, that the party of the first part and its successors and assigns shall and will insert in all deeds of any part of the said land bounded by Seventieth street, Madison avenue, Seventy-First street and a line parallel to Fifth avenue, and one hundred and seventy-five (175) feet distant easterly therefrom, covenants by the grantee in such deed or deeds similar to those hereinabove made by the party hereto of the second part, and covenants by the grantor in such deed or deeds similar to those hereby made by the party hereto of the first part.

‘These covenants shall be deemed covenants running with the land last above described and binding on future owners thereof, but shall expire and terminate by limitation above mentioned on the first day of January, nineteen hundred and twenty-nine (1929).’

The lot has a frontage of 21 feet on Seventieth street, and 100 feet 5 inches on Madison avenue.

The lease is subject to the restrictive covenants above quoted. The tenant is bound to erect a business building, the owner to pay part of the cost, and to assume the defense of any action brought to enforce the restriction, and to waive rent during the continuance of any injunction based thereon.

The block in question, bounded on the west by Fifth avenue, on the south by Seventieth street, on the east by Madison avenue, and on the north by Seventy-First street, was for many years prior to 1907 owned by the New York Public Library. The Library first sold the westerly portion of the block lying along Fifth avenue and extending back 175 feet. This plot comprised a little less than half the entire block, and was sold by the public library without restriction. It is occupied by what is known as the Frick mansion. In 1907 a plan was formulated to restrict the easterly portion of the block, and thereafter, when the library disposed of various portions of the property remaining, it did so by deeds containing or subject to the same restrictive covenant as that hereinabove mentioned. In 1916 the board of estimate and apportionment of the city of New York adopted a resolution known as the Building Zone Law, under the provisions of which both the east and west sides of Madison avenue for a distance of 100 feet from each side of the avenue from Fortieth street to 120th street were established as a business district, and, from that time to the present under such resolution this territory has been established as a business district. On May 5, 1922, the board of estimate and apportionment adopted a resolution providing for the widening of Madison avenue from Sixtieth to Seventy-Second streets in order to provide for the increased business traffic on the avenue. In Februay, 1922, the plaintiffs purchased a plot within the restricted area on the south side of Seventy-First street, 45 feet in width, and with a depth of 100 feet 5 inches. On this plot the plaintiffs erected a residence wherein they now reside. Later on the plaintiffs bought the building occupying the southwest corner of Madison avenue and Seventy-First street, which building was then and still is occupied by Dr. Tilney as a residence and doctor's office, but it is not by virtue of such ownership that this action is brought.

[1] The trial court at Special Term sustained the defendants' contentions (1) that the character of the neighborhood had in the period between the years 1907 and 1924 radically changed from a residence to a business district, and (2) that plaintiffs were permitting the use of their corner lot for business purposes, and dismissed the complaint. The Appellate Division, by a vote of three to one, reversed, made new findings, and directed judgment for the plaintiffs. Und...