Underwood v. Herman & Co.

• Decision Date: 17 November 1913
• Citation: 82 N.J.Eq. 353,89 A. 21
• Court: New Jersey Supreme Court
• Parties: UNDERWOOD v. HERMAN & CO.

89 A. 21

82 N.J.Eq. 353

UNDERWOOD

v. HERMAN & CO.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1913.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by E. Alexander Underwood against Herman & Co., a corporation. From decree for complainant, defendant appeals. Reversed.

Philip J. Schotland, of Newark, for appellant Frank E. Bradner, of Newark, for appellee.

MINTURN, J. The bill was filed to enforce the following building restriction: "The said party of the second part for himself, his heirs and assigns, doth covenant to and with the said party of the first part, their heirs, executors and administrators, that neither the said party of the second part, nor his heirs or assigns, shall or will at any time hereafter erect upon said lot any building other than a dwelling house and its appropriate buildings, the said dwelling house to cost in no case less than three thousand dollars, and to be located at least twenty feet distant from the line of Osborne terrace; and that no barn shall be erected on said lot within one hundred feet from the line of Osborne terrace, neither shall they erect or permit upon any part of said premises any buildings to be used for the sale of intoxicating liquors, or for any manufacturing business, or any hogpen, public laundry, livery stable, meat or fish market, or for any purpose that would be considered detrimental, noxious or dangerous to the owners or occupants of the surrounding premises." This restriction was contained in all the deeds of conveyance of 48 plots of ground, containing 50 feet frontage, by 150 feet in depth, made and executed by James H. Osborne and Robert A. Osborne to various grantees, among whom were the complainant and the defendant. The lots were situated on Osborne terrace, running south from Clinton avenue in the city of Newark, for a distance of twelve hundred feet. The complainant was among the first purchasers, and erected a one family residence upon the plot he purchased. The plots thus restricted were built upon, excepting that purchased by the defendant and another purchaser of a lot near Clinton avenue. Thirteen of the 47 houses built upon the plots are two family houses, and 34 of the plots contain one family houses. The defendant undertook to erect upon the plot purchased by it what is termed "a modern high-class apartment house," three stories high. The case shows that nearly all the houses on the tract are three stories in height in front. It becomes manifest from the testimony that whatever design the original grantors entertained of restricting the use of the...