Korn v. Campbell

• Decision Date: 29 September 1908
• Parties: KORN v. CAMPBELL.
• Court: New York Court of Appeals Court of Appeals

192 N.Y. 490

85 N.E. 687

KORN

v.CAMPBELL.

Court of Appeals of New York.

Sept. 29, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

Action by David Korn against Georgine Campbell. From a judgment of the Appellate Division (119 App. Div. 401,104 N. Y. Supp. 462), reversing a judgment for plaintiff (52 Misc. Rep. 220,102 N. Y. Supp. 108), plaintiff appeals. Affirmed.Louis Marshall, for appellant.

David B. Ogden, for respondent.

WERNER, J.

The plaintiff and the defendant are the respective owners of lands which adjoin each other, the titles to which were derived from a common source. The defendant's lot is on the northwest corner of Madison avenue and Seventy-Third street, in the borough of Manhattan, city of New York, having a frontage of 18 feet on the street, and a length of 80 feet on the avenue. The plaintiff's lot is on the avenue immediately north of the defendant's, and has a frontage of 22 feet 2 inches, with a depth of 92 feet. Each of these lots has upon it the typical dwelling house characteristic of that section of the city. This action is brought to restrain the defendant from making alterations in the building upon his lot which are designed to render it convenient and suitable for certain business purposes, and the plaintiff predicates his right to this relief upon a restrictive covenant, which, among other things, recites that the premises out of which the respective lots of the plaintiff and the defendant have been carved shall ‘be used for the erection of first-class private residences only.’ The question is whether that covenant can be enforced by the plaintiff against the defendant. At Special Term it was held that it could. At the Appellate Division a contrary decision was reached, although by a divided court, and the case is now before this court upon plaintiff's appeal.

Since everything depends upon the history of the titles and the covenant referred to, a short statement of the salient facts is necessary to a proper understanding of the precise question involved. On the 10th day of August, 1870, James Lenox conveyed to William Laior a plot of land which had a frontage of 102 feet 2 inches on the west side of Madison avenue, and a frontage of 195 feet on the north side of Seventy-Third street. The deed by which this conveyance was made contained the covenant above referred to. This covenant, after prohibiting upon these premises many noxious and objectionable trades, occupations, and structures, provided that the grantee ‘will use or suffer the said premises to be used for the erection of first-class private residences only.’ So far as the record discloses, Lenox owned no other lands in that immediate neighborhood, and the lots now owned by the parties to this action are embraced in the tract thus conveyed. On the 12th day of August, 1870, Lalor and wife conveyed to James H. Coleman an undivided onethird interest in the tract of land above described, but the deed contained no reference to the covenant set forth in the deed from Lenox to Lalor. On July 1, 1871, Lalor and Coleman, with their respective wives, conveyed the whole tract to James E. Coburn by a full-covenant warranty deed, which referred to the covenant in the deed from Lenox to Lalor as follows: ‘Subject to the conditions, covenants, and restrictions against nuisances and buildings contained in deed of James Lenox of the above-described premises.’ Coincident with the delivery of this deed to Coburn, he executed to the North American Life Insurance Company 11 separate mortgages, one upon each of 11 lots into which he had divided the whole tract thus derived from Lalor and Coleman. Neither of these mortgages contained any reference to the restrictive covenant in the deed from Lenox. Upon these 11 lots Coburn erected private dwelling houses, which were disposed of to various persons by deeds in which there was no mention of that covenant. In 1879 the mortgages given by Coburn to the insurance company were foreclosed. The premises now owned by the plaintiff then belonged to Mary H. Moore, and title to the lot now owned by the defendant was then in Artemus H. Holmes; both of these grantees holding under deeds subsequent in date to the mortgage above referred to, and both having derived their titles through Coburn by deeds which did not refer to the restrictive covenant in the original deed from Lenox. Thus stood the titles to the premises now owned by the plaintiff and the defendant, respectively, when the mortgages to the insurance company were foreclosed in 1879, and the premises were sold under referee's deeds which embodied no part of the restrictive covenant and made no reference thereto. The plaintiff's lot was bid in by Gustav Gottheil, and the defendant's lot by Artemus H. Holmes, who was then the owner of the equity of redemption. From that time down to the conveyance to the plaintiff the title to his lot passed by mesne conveyances in the form of fullcovenant warranty deeds, none of which referred to the restrictive covenant in the deed from Lenox; and the title to the defendant's lot passed by similar conveyances, with a single exception in 1887, when Jacob B. Tallman became the owner thereof under a deed ‘subject to the covenant against nuisances and as to buildings contained in a certain deed made by James Lenox to William Lalor, dated the 10th day of August, 1870, and recorded in the office of the register aforesaid in Liber 1154 of Conveyances, page 253, August 10, 1870.’

There has been much judicial writing upon the subject of restrictive covenants, and, as may be anticipated from the very nature of the topic, the cases abound in fine and subtle distinctions, which have been invented either to overcome the rigor of the common law in courts of equitable cognizance or to adapt the settled forms of relief to fit special cases. There are many decisions upon this branch of the law which appear to be in hopeless conflict with each other, but which are easily reconcilable when their peculiar circumstances are understood. We shall make no attempt to analyze the decisions, for we think the case is plainly outside of any rule under which restrictive covenants can be enforced. For the particular purposes of this case such covenants may be broadly divided into three classes. In the first class may be placed those which are entered into with the design to carry out a general scheme for the improvement or development of real property. This class embraces all the various plans, generally denominated in the English cases as ‘building schemes,’ under which an owner of a...