Hyman v. Tash

• Decision Date: 01 August 1908
• Citation: 71 A. 742
• Parties: HYMAN et al. v. TASH.
• Court: New Jersey Court of Chancery

71 A. 742

HYMAN et al.

v. TASH.

Court of Chancery of New Jersey.

Aug. 1, 1908.

Bill by Susie Hyman and others against Albert T. Tash. Decree for complainants, excepting complainant Vann.

George O. Vanderbilt and Adrain S. Appleget, for complainants.

Fergus A. Dennis, for defendant.

WALKER, V. C. The complainants and the defendant are owners of lots fronting on the easterly side of Witherspoon street in Princeton. The properties of all of the parties were part and parcel of a larger tract of land of which John Murphy, late of the borough of Princeton, died seised intestate, and which was afterwards sold off in building lots by his heirs at law. On December 7, 1894, Robert S. Murphy, attorney in fact for the heirs of John Murpby, deceased, sold and conveyed to William W. Nixon a portion of the lands, and he Nixon, on October 23, 1901, sold and conveyed the same premises to the defendant, Albert T. Tash. In the deed from Murphy to Nixon is the following restriction: "Second. That no dwelling shall be erected upon this lot except those facing upon said Witherspoon street, and the front line of said dwelling house shall not be less than fifteen feet from said street, and said dwelling house shall be erected in the center of said lot hereby conveyed, and equal distant from the side line fences of the lot." The same identical restriction is contained in the deed from Nixon to Tash. The same identical restriction is to be found in the deeds of the complainants. The scheme of the original owners, the Murphy heirs, undoubtedly was to make the tract of laud abutting on Witherspoon street owned by them a residential section, but the testimony does not show that the grantees of the Murphys assented to the scheme or even knew of it. The defendant, Tash, in disregard of the restriction in his deed, and shortly before the filing of the bill and while occupying a dwelling house erected on his lot in practical conformity with the restrictions in his deed (the side lines being somewhat at variance with the restriction), commenced the erection of a frame building immediately adjoining the side line of his dwelling house on the southwest, and extending laterally from the dwelling to the line of the Hymans and out to the end, binding upon the easterly line of Witherspoon street. This building, at the time the injunction issued, was inclosed. It is one story high, and shuts off the view up and down Witherspoon street from the front porches and the windows in the first story, and to some extent, necessarily, the second story, of the houses of the complainants.

The defendant in his answer admits the erection of the building in question, and seeks to justify it under a claim of right. He says that the erection of the building is for store purposes only, and forms no part of his dwelling house and is entirely detached therefrom, and that he has therefore not done anything in contravention or breach of what he calls the "special covenants and stipulations in the conveyances under which he claims title." He also claims that the complainants have not built in strict conformity with the restrictions in their deeds, and insists that they have not built in the center of their lots. Neither has he done so. None of the lots run at right angles to Witherspoon street, but are deflected at some angle. The fronts of the buildings are parallel, or nearly so, with the street, hence the side lines of the buildings are not parallel with the side lines of the lots. It does not lie in the mouth of the defendant to criticise the complainants in respect of this feature of their building operations, for they are all practically alike. And, whether so or not, the defendant cannot successfully contend against the complainants in this regard if the violations of the restrictions be immaterial, and such as do not prevent the general plan relating to the street from being carried out, assuming that there be a general plan. Morrow v. Hasselman, 69 N. J. Eq. 612, 616, 61 Atl. 369.

A question raised in limine is whether the restriction is not directed solely against dwellings, in which case the building of stores and erection of buildings other than dwellings would not be prohibited. This question, in my judgment, is easy of solution. The neighborhood is a residential section, and undoubtedly the heirs of the Murphy estate never contemplated the erection of business buildings on Witherspoon street. The photographs offered in evidence show that that idea has been acted upon by the building of cottages by the parties to this suit, complainants and defendant, and by others owning property on the tract. To prohibit the building of a dwelling within 15 feet of the street and to permit a store or other building to be run out to the street seems at a glance to be destructive of the idea that was originally entertained in imposing the restriction, which idea has been fully carried out by all of the owners of lots.

...