McClure v. Leaycraft

• Decision Date: 27 October 1905
• Citation: 75 N.E. 961,183 N.Y. 36
• Parties: McCLURE v. LEAYCRAFT.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 36

75 N.E. 961

McCLURE

v.LEAYCRAFT.

Court of Appeals of New York.

Oct. 27, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John McClure, trustee of Julia P. Kirkland, under the will of Charles P. Kirkland, against Robert J. Leaycraft. From an order of the Appellate Division (97 App. Div. 518,90 N. Y. Supp. 233), reversing a judgment for defendant on dismissal of the complaint, and granting a new trial, defendant appeals. Reversed.

This action was brought to restrain the defendant from erecting an apartment house upon premises owned by him situate on the southwest corner of 145th street and St. Nicholas avenue in the city of New York. Either party owns land nearly adjacent to that of the other and on the same block. There is a four-story dwelling, designed for but one family, standing on the land of the plaintiff, while the premises of the defendant are vacant. Both parties took title from a common source and subject to a covenant, made November 9, 1886, against the erection at any time upon any part of the tract to which the lands of the respective parties belong ‘of any buildings, except brick or stone dwelling houses,’ or ‘any tenement, apartment, or community house.’ On the 8th of December, 1886, the covenant was so modified as to permit the erection of churches upon the tract and to limit the period of restraint to 25 years. These covenants by express agreement ran with the land, and the instruments containing the same were duly recorded as conveyances in the proper office. Shortly before the commencement of this action the defendant filed plans to erect and had begun the erection upon his premises of a six-story modern apartment house, ‘divided into 42 independent and separate suites of rooms or apartments, each suite containing a complete set of rooms and improvements such as are usually found in a first-class private dwelling house.’

In addition to the foregoing facts, the trial court found as follows: ‘Tenth. That at the time when the conveyances hereinbefore set forth were made and entered into, the real property in the vicinity of the property hereinbefore described was occupied exclusively by small private dwellings, and was classed as a private residential district, and such houses were built solely for one family and occupied by one family, and there were no places of business, flats, tenements, or apartment houses in the immediate neighborhood of the property affected by the said covenants. Eleventh. That since the making of the said covenants, and within the period of about 10 years last past, great changes have occurred in the neighborhood and in the class of buildings erected upon the property in said neighborhood, and in the immediate vicinity of the premises owned by the plaintiff and the defendant, and there has been erected upon such property, including the three corners directly opposite to defendant's premises, large apartment houses having a great many apartments therein, several on each floor and several stories in height, and which are occupied on the ground floor by places of business and used for business purposes. Numerous flats or tenement houses have been built on the block fronting on 145th street between St. Nicholas and Bradhurst avenues, which is in the vicinity of plaintiff's and defendant's property. * * * Fourteenth. That the erection upon the said land of the said apartment house which the defendant proposes to erect thereon will not decrease the fee value of the plaintiff's premises, or of the land and dwellings within the tract hereinbefore described, but will increase the value thereof, and the use of the same as an apartment house will not make the neighborhood undesirable nor decrease the values of the adjoining property. Fifteenth. That the change which has taken place in the character of the neighborhood has made the property, including the tract hereinbefore described, especially the land owned by the defendant, undesirable for the erection of a private dwelling thereon. Sixteenth. That by reason of the change in the character of the neighborhood and of the immediate vicinity of plaintiff's property and defendant's property the same has been so altered as to render inexpedient the observation of the said covenants, and it would be inequitable to enforce the covenants hereinbefore set forth against the defendant, as the enforcement of the same would cause him great damage and would not benefit the owners of the adjoining property.’

The complaint was dismissed on the merits, for the reason, among others, ‘that the character and condition of the neighborhood have so changed since the making of the said agreements that it would be inequitable to enforce a covenant prohibiting the erection of a structure such as the defendant proposes to erect, and equitable relief enjoining the defendant from erecting the said structure should be refused.’ Upon appeal to the Appellate Division the judgment of the Special Term was reversed, and a new trial ordered. The defendant appealed to this court.Bertram L. Kraus and Henry B. Wesselman, for appellant.

David McClure, for respondent.

VANN, J. (after stating the facts).

As the order of reversal is silent as to the ground, we are required to presume that the judgment of the trial court was not reversed upon a question of fact, and that the facts as found were approved by the Appellate Division. Bomeisler v. Forster, 154 N. Y. 229, 48 N. E. 534,39 L. R. A. 240;Petrie v. Trustees of Hamilton College, 158 N. Y. 458, 463,53 N. E. 216; Code Civ. Proc. § 1338. As said facts find ample support in the evidence, and no exception was taken to any ruling relating to evidence, the only question presented for decision is whether upon those facts the plaintiff or the defendant is entitled to judgment. Spence v. Ham, 163 N. Y. 220, 224,57 N. E. 412,51 L. R. A. 238;National Harrow Co. v. Bement & Sons, 163 N. Y. 505, 57 N. E. 764.

The covenant in this case differs from the one recently under consideration by us, in substance as well as in the date when it was made. Kitching v. Brown, 180 N. Y. 414, 73 N. E. 241. In that case the covenant was made in 1873, when the modern apartment house was unknown, and the promise was not to erect any ‘tenement house’ upon the premises then in question. The covenant now before us was made in 1886, when apartment houses were not unknown, and it runs against the erection of an apartment house eo nomine. Assuming, therefore, that the defendant was about to violate the covenant, the question is whether, upon the facts found and approved by the courts below relating to the radical change in the situation of the property affected by the covenant, a court of equity was bound to refuse equitable relief in the form of an injunction and to leave the injured party to recover his damages in an action at law. If the granting or withholding of a permanent injunction is within the absolute discretion of the Supreme Court, the exercise of that discretion by the Appellate Division in favor of the plaintiff is beyond our power to review; but if the facts found compel the conclusion, as matter of law, that an injunction...