Vogeler v. Alwyn Improvement Corp.

• Decision Date: 10 January 1928
• Parties: VOGELER et al. v. ALWYN IMPROVEMENT CORPORATION.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 131

159 N.E. 886

VOGELER et al.

v.ALWYN IMPROVEMENT CORPORATION.

Court of Appeals of New York.

Jan. 10, 1928.

Action by Willy R. Vogeler and others against the Alwyn Improvement Corporation. Judgment of Special Term for plaintiffs was affirmed by the Appellate Division (220 App. Div. 829, 222 N. Y. S. 918), and defendant appeals.

Reversed, and plaintiffs' motion for judgment denied.

Appeal from Supreme Court, Appellate Division, First Department.

Max Horowitz and Charles M. Rosenthal, both of New York City, for appellant.

Samuel D. Macpeak and James A. Beha, both of New York City, for respondents.

LEHMAN, J.

The plaintiffs in this action seek a declaratory judgment decreeing that the restrictions contained in a deed to premises known as 560 West End avenue, New York City, which the plaintiffs now own, are not enforceable in equity and create no easement in favor of the adjoining parcel of land known as 562-568 West End avenue. The allegations of the complaint show that the premises owned by the plaintiffs were conveyed by the Wittnauer Realty Company, Inc., to the plaintiffs' predecessor in title on July 7, 1920. The deed contains a clause that:

‘As part of the consideration given for this conveyance, the party of the second part, for itself and its successors and assigns, covenants and agrees that no building, addition to or alterations of building, or no structure or sign of any kind shall or will be constructed or erected above the building or structure now standing on the land herein conveyed, and no new building or structure or sign which may be constructed or erected in place of the building or structure now on said land shall or will exceed the height of 50 feet from the sidewalk level, without the consent in writing duly signed and acknowledged of the owner and holder of a certain mortgage bearing date the 7th day of July, 1920, made by the L. & J. Realty Company, Inc., to Wittnauer Realty Company, Inc., in the amount of $189,000, covering the adjoining premises known as No. 562-568 West End avenue, until said mortgage is fully paid and satisfied, and in addition unless or until the owner of the said adjoining premises known as No. 562-568 West End avenue, its successors or assigns, consents in writing, duly signed and acknowledged, to the removal and termination of this restricted covenant. This covenant shall run with the land described herein until it be canceled and terminated as herein provided.’

The plaintiffs in this action claim that this covenant is no longer enforceable.

The defendant is the owner of the adjoining parcel Nos. 562-568 West End avenue. Until July 7, 1920, the Wittnauer Realty Company owned both parcels. That corporation conveyed both parcels on the same day to different grantees, but the complaint alleges that the parcel owned by the defendant was conveyed first, and that when the Wittnauer Realty Company, Inc., conveyed the parcel No. 560 West End avenue it held no title to, but only a mortgage upon, the adjoining parcel. The intention to restrict the use of the parcel owned by the plaintiffs for the benefit both of the mortgagee and the owner of the adjoining parcel is clearly expressed in words. The grantee accepted the deed subject to that restriction. The plaintiffs thereafter obtained title to the land with knowledge of the restriction on its use, but they ask the courts to declare that they are not bound by that restriction after the mortgage then owned by the Wittnauer Realty Company has been paid.

The only basis of the plaintiffs' claim is a contention that a grantor of land may not restrict its use except for his own benefit or the benefit of land which the grantor retains. A motion by the defendant for judgment dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action was denied. Then the defendant answered, and in its answer alleges that the conveyance of the two adjoining parcels by the Wittnauer Realty Company was simultaneous. A motion by the plaintiff to strike out the answer and for judgment on the pleadings has been granted, and judgment entered as prayed for in the complaint. From that judgment the defendant has appealed.

[1] It is urged at the outset that the decision in favor of the plaintiff upon the motion to dismiss the complaint stands as the law of the case, since the notice of appeal from the subsequent judgment does not bring up the earlier order for review. In the case of Ansorge v. Kane, 244 N. Y. 395, 155 N. E. 683, we have held otherwise. We may consider the pleadings as if no motion for judgment dismissing the complaint had been made and denied before the answer was interposed. In this state the rule has been firmly established that a reservation or exception in a deed is ‘ineffectual to convey any estate or interest whatsoever in the lands described to a stranger to the conveyance.’ Tuscarora Club of Millbrook v. Brown, 215 N. Y. 543, 109 N. E. 597. The courts below have granted judgment in favor of the plaintiffs upon the theory that by analogy a stranger to the conveyance cannot enforce a restrictive covenant contained in the deed to the plaintiff's predecessor in title.

[2] Here the...