Rowland v. Miller

• Decision Date: 03 October 1893
• Citation: 34 N.E. 765,139 N.Y. 93
• Parties: ROWLAND v. MILLER et al.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 93

34 N.E. 765

ROWLAND

v.MILLER et al.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from superior court of New York city, general term.

Action by Mary Eliza Rowland against Charles Miller and the Taylor Company. From a judgment of the general term (18 N. Y. Supp. 793) affirming a judgment of the special term for plaintiff, defendant Miller appeals. Affirmed.

The other facts fully appear in the following statement by EARL, J.:

In November, 1865, Miss Burr owned several lots of land in the city of New York, on the easterly side of Madison avenue, extending easterly to Vanderbilt avenue, between Forty-Second and Forty-Fourth streets, all of which were then vacant, and on the 20th day of that month she contracted to sell eight of the lots to Pierson and Cochran. Those lots extended southerly from the southerly line of Forty-Third street half way to the northerly line of Forty-Second street. She still retained title to several lots in the same vicinity, and on the same day she and they entered into a mutual agreement, ‘for themselves and their representatives, heirs and assigns, owners of any of the said lots above described, that no buildings other than dwelling houses at least two stories high, of brick or stone, or churches, chapels, or private stables of the same material, shall be erected on any of said lots; that no livery or other stable shall be erected on lots fronting on Madison avenue; and that there shall not be allowed or erected on any part of said lots of land any tenement house, brewery, or lager-beer saloon, tavern, slaughter house, butcher's or smith's shop, forge, furnace, steam engine, foundry, carpenter's or carriage or car shop, manufactory of metals, gunpowder, glue, varnish, vitriol, turpentine, ink, or matches, or any distillery, or any establishment for dressing hides, skins, or leather, or any museum, theater, circus, or menagerie, nor shall any other buildings be erected, or trade or business carried on, upon said lots, which shall be injurious or offensive to the neighboring inhabitants; it being expressly agreed that this covenant runs with the land, and is binding on all future owners thereof.’ This agreement is called the ‘Restriction Agreement,’ and the lots have since been conveyed subject thereto. The defendant Miller has become the owner of the lot on the corner of Madison avenue and Forty-Third street, and the plaintiff owns the lot next southerly thereof, which she occupies as her residence; and no question is made that those lots passed into the ownership of the plaintiff and Miller subject to the restriction agreement. On the 1st day of December, 1890, Miller leased his lot, with the house thereon, to the Taylor Company, for the term of 10 years, and it entered into the possession thereof. This action was commenced on the 31st day of January, 1891, to restrain the defendants from violating the covenants contained in the restriction agreement, by carrying on a business condemned thereby. The action was brought to trial at a special term, and the trial judge described the business carried on upon the Miller lot as follows: ‘That the business of said company is, and for many years has been, that of undertakers, and that a part of that business consists in the reception of human dead bodies, their preparation for burial or other sepulture, involving embalmment in some instances, and in the sale of coffins, caskets, shrouds, and other paraphernalia generally used in the final disposition of dead human bodies. That said company, when it obtained said lease, intended to fit up the building on said premises, which for the most part is built and arranged like an ordinary first-class corner dwelling house in that locality, for the purposes of their business, and have fitted up the same, and are now carrying on their said business in said building. That said company keeps and uses 14 wagons in its business, each of which (save one) is painted and otherwise fitted up after the manner of wagons used by undertakers in transporting dead human bodies or funeral appliances. That it has fitted up a room in said building called by said company a ‘chapel,’ and intended by it for the use of people who desire to conduct or hold funeral services, and not for religious worship or services, except so far as such worship or services may be incidental to such funeral ceremonies, which use of said chapel is a part of the business of the said company, and from which it expects and intends to make money. That said company has also fitted up the front basement of said building (which hitherto was like the front basement of an ordinary dwelling in that locality) with special reference to, and for the special purpose of, holding autopsies upon, and for the dissection and other post-mortem examination of, dead human bodies, having prepared a marble table for that special purpose, and closed up the windows and other means of looking into their said autopsy room, in order to prevent observation of idle or curious people, who might otherwise be tempted to congregate about and look into the basement windows while dead human bodies were undergoing such dissection or examination. That in order to prevent the escape into other parts of said building of the foul and noxious odors and gases which usually escape from dead human bodies during autopsical or other post-mortem examinations, said company have opened ventilating holes from said dissection room into two chimney flues, and placed gas jets in said flues, in the hope and expectation that such gases and odors would escape from said building into the air above said building by means of such chimney flues; but they have taken no other precaution to prevent the spread of such odors and gases after their expected escape from the chimney flues. That a part of the undertaking business consists in the receipt and temporary storage of dead human bodies, and in affording facilities for autopsical or other post-mortem examinations upon such bodies whenever it is desired or required. That the parlor floors of said building have been elegantly fitted up for funeral purposes, and are designed by said company for that use, not as a matter of charity, but as a matter of business, and for business profit. That said company have extensively advertised their said business, and the use which they propose to make and are making of said building, and that they will furnish professional embalmers, and that their premises will be kept open day and night for the purposes of their business, by means of advertisements in newspapers which...