University Gardens Property Owners Ass'n, Inc. v. University Gardens Corp.

• Court: New York Supreme Court
• Writing for the Court: MARCUS G. CHRIST
• Citation: University Gardens Property Owners Ass'n, Inc. v. University Gardens Corp., 189 N.Y.S.2d 998, 21 Misc.2d 243 (N.Y. Sup. Ct. 1959)
• Decision Date: 02 July 1959
• Parties: UNIVERSITY GARDENS PROPERTY OWNERS ASSOCIATION, INC., Plaintiff, v. UNIVERSITY GARDENS CORPORATION, Joseph Steinberg, and Jules E. Rosenthal and Isabel Rosenthal, co-partners, doing business under the firm name and style, University Gardens Company, Defendants.

Page 998

189 N.Y.S.2d 998

21 Misc.2d 243

UNIVERSITY GARDENS PROPERTY OWNERS ASSOCIATION, INC., Plaintiff, v. UNIVERSITY GARDENS CORPORATION, Joseph Steinberg, and Jules E. Rosenthal and Isabel Rosenthal, co-partners doing business under the firm name and style, University Gardens Company, Defendants.

Supreme Court, Special Term, Nassau County, Part II.

July 2, 1959.

Hubbell & Davis, New York City, for plaintiff. Emerson F. Davis, New York City, of counsel.

Lawrence W. McKeown, Valley Stream, for defendant Joseph Steinberg.

Munley & Meade, Great Neck, for defendants University Gardens Corp., Jules E. Rosenthal and Isabel Rosenthal. John Munley, Great Neck, of counsel. MARCUS G. CHRIST, Justice.

This is an action for an injunction to prevent the erection of a funeral home upon the ground that it violates restrictive covenants. The court finds the allegations of the complaint to be true.

The defendant corporation developed a large tract of land at Great Neck, Nassau County, fronting on the south side of Northern Boulevard. The development is known as University Gardens, and it is restricted by two Declarations recorded in the Nassau County Clerk's Office. One Declaration is applicable to the property fronting on Northern Boulevard where business is permitted and the other applies to the remaining land devoted to residential use. Plaintiff's Exhibit 3 is the business Declaration. Paragraph 3rd reads as follows:

'Third: There shall not be erected, permitted, maintained or carried on upon said property or any part thereof any brewery, distillery, malt house, slaughter house, brass foundry, tin, nail or other iron foundry, lime kiln or sugar bakery, tallow candlery, crematory, hospital, asylum or institution of like or kindred nature, stable of any kind (the word 'stable' being intended to include garage), cattle yard, hog pen, fowl yard or house, privy vault, outside toilet or tent, nor any establishment for the making or preparing of soap, candles, starch, vitriol, glue, ink, turpentine, oils, lamp black, gunpowder, dynamite or other explosives, baking powder, cream of tartar, gas, asphalt or fertilizer, nor any establishment for bone boiling, fat boiling, dyeing, tanning, dressing or preparation of skins, hides or leather, nor any noxious, dangerous or offensive thing, trade or business or use of the property whatsoever, nor shall there be kept upon the premises or any part thereof any swine, cattle, live poultry or pigeons.'

Paragraph Sixth requires that all plans and specifications be submitted for approval of the developer.

Paragraph Seventeenth reads as follows:

'Seventeenth: Any of the restrictions, conditions, covenants, charges and agreements herein contained, except the maintenance charges set forth in paragraph 'Twelfth' hereof and in paragraph 'Thirteenth' of said prior Declaration of Restrictions may be annulled, waived, changed or modified by the Company as to any plots or other portions of the property with the consent of the then owners of fifty percent in number of the plots shown on the Map hereinbefore referred to. The Company shall be deemed to be an owner as to any plots then owned by it.'

Paragraph Twentieth reads as follows 'Twentieth: All the restrictions, conditions, covenants and agreements herein contained are for the benefit of the Company, as owner of the land shown on the Map hereinabove described and of any Property Owners' Association which may be formed, and of the purchasers or any future owners of any of the plots shown on said Map. Any violation or breach of any of said restrictions, conditions, covenants or agreements shall give to the Company, its successors or assigns, the right to enter upon the property upon or as to which such violation or breach exists and summarily abate or remove any erection, thing or condition that may exist thereon contrary to the intent and meaning of the provisions of this Declaration at the expense of the owner of such property, and the Company, its successors or assigns, shall not thereby be deemed guilty of any manner of trespass for any such entry, abatement or removal. In addition thereto, the Company, its successors or assigns, and any Property Owners'...