One & Three South William Street Bldg. Corp. v. Gardens Corp.

• Decision Date: 28 February 1933
• Citation: 261 N.Y. 575,185 N.E. 744
• Parties: ONE AND THREE SOUTH WILLIAM STREET BUILDING CORPORATION, Respondent, v. GARDENS CORPORATION et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 575

185 N.E. 744

ONE AND THREE SOUTH WILLIAM STREET BUILDING CORPORATION, Respondent,

v.GARDENS CORPORATION et al., Appellants.

Court of Appeals of New York.

Feb. 28, 1933.

Appeal from a judgment, entered December 19, 1931, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (232 App. Div. 58,243 N. Y. S. 743) reversing on the law and facts a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff upon new findings. The action was brought by the owner of premises known as block 12 in Forest Hills Gardens, Queens county, to obtain a declaratory judgment determining that it had the right to erect an apartment house on such premises, and enjoining the defendants from interfering with the erection of such a building. The Sage Foundation Homes Company, in June, 1911, owned in fee a tract of about 140 acres of land at Forest Hills, of which block 12 is a part, and undertook to develop and sell the tract subject to certain restrictions set forth in instruments, each of which was called a declaration of restrictions, which were recorded in the county clerk's office of Queens county. Every parcel of property sold was subject to the declaration of restrictions by express provision in all deeds. Paragraph fourth of the original declaration limited specified portions of the tract, including block 12, to private dwellings for not more than two families. The third declaration filed by the developers, dated April 18, 1913, contained the following clause:

‘Fourteenth. Any of the restrictions, conditions, covenants, charges and agreements herein contained (except restrictions as to general nuisances) * * * may be annulled, waived, changed or modified by the Homes Company as to any property owned by it, and, with the consent of the then owner thereof, as to any property sold.'

On January 1, 1923, the Sage Foundation Homes Company, in a three-cornered agreement with the defendant Gardens Corporation and another corporation, made a partial assignment of its powers and rights under the declaration, expressly excepting, however, from the assignment and reserving to itself the right to modify the restrictions on several parcels, including block 12, so as to permit the erection of apartments. By a deed dated January 15, 1924, to certain grantees of all but a small corner of the block, and by an agreement with plaintiff da...