Wetmore v. Bruce

• Decision Date: 14 January 1890
• Citation: 118 N.Y. 319,23 N.E. 303
• Parties: WETMORE v. BRUCE.
• Court: New York Court of Appeals Court of Appeals

118 N.Y. 319

23 N.E. 303

WETMORE

v.BRUCE.¹

Court of Appeals of New York, Second Division.

Jan. 14, 1890.

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

William Man, for appellant.

Charles Jones, for respondent.

PARKER, J.

This action was brought to compel the defendant to specifically perform an agreement made by her to purchase the house and lot No. 19 Washington square north, in the city of New York. The defendant in her answer, among other objections to the title, averred that the former owners of the land in the block in which the house and lot are situated had mutually covenanted and agreed that 12 feet of the front of the lot in question, and of the other lots in the block, should not at any time be built upon, but should be forever left open for court-yards; that such agreement was in full force, and constituted a restriction and incumbrance which depreciated the value of the property. The defendant, by way of counter-claim, alleged that she had sustained damages, because of the inability of plaintiff to give a title free and clear of all incumbrances, consisting of the percentage paid on account of the purchase price, the auctioneer's fees, and the expenses paid for examining the title. The plaintiff in his reply admitted the making of the agreement set forth in the answer, but denied that it amounted to an incumbrance or restriction, in the proper meaning of the words, or that it impaired the value of the premises. It is entirely competent for adjoining owners of land, by grant, to impose mutual and corresponding restrictions upon the lands belonging to each, for the purpose of securing uniformity in the position of buildings. The covenants being mutual, and imposing such restriction in perpetuity, are, in effect, reciprocal easements, the right to the enjoyment of which passes as appurtenant to the premises. Observances of such a covenant will be enforced by a court of equity. Lattimer v. Livermore, 72 N. Y. 174;Trustees v. Lynch, 70 N. Y. 440;Insurance Co. v. Insurance Co., 87 N. Y. 400; Perkins v. Coddington, 4 Rob. (N. Y.) 647 The title, then, which the plaintiff tendered, was not free and clear from all incumbrance; for certainly a covenant, valid and enforceable in equity, which so limits and restricts the use of 12 feet in depth along the entire front of a city lot as to prevent building thereon, is an incumbrance.

Upon the trial the plaintiff, by evidence tending to show that the existence of the agreement did not depreciate but rather enhanced the value of the premises, sought to bring the case within the decision of this court in Riggs v. Pursell, 66 N. Y. 193. In that case the purchaser at a judicial sale refused to take title. The court said: ‘While the agreement requires that a court-yard shall be left in front of this lot, for the benefit of the other lots on the street, it also requires that a court-yard shall be left in front of all the other lots for the benefit of this, and all the houses on the street have been built in...