Bergner v. Kick , 446 N.Y.S.2d 787 ( 1981 )

Callahan, J. (dissenting).

I dissent and vote to affirm. It is improper for the majority to substitute their judgment for that of the court on the credible evidence adduced from the testimony and exhibits presented to the trial court. I agree with the determination of the trial court that the plaintiffs met their burden of proof by clear and convincing evidence as enunciated in Huggins v Castle Estates (36 NY2d 427) and are, therefore, entitled to judgment as against both defendants. The evidence that showed defendant Kick had exhibited to the plaintiffs a map showing his entire property devoted to single-family residences and had made statements outlining the restricted development of the land, was sufficient to prove the existence of a common scheme of development. Since the common scheme was shown by overwhelming evidence, the defendants are estopped from developing Kick’s land for anything but single-family residences (see Huggins v Castle Estates, supra; Steinmann v Silverman, 14 NY2d 243; Phillips v West Rockaway Land Co., 226 NY 507; Guthrie v Clark, 57 Misc 2d 709). Furthermore, defendant’s parol representation concerning the imposition of restrictions on all of his land is sufficient to establish the deed restrictions to defendant’s remaining lands (see Bristol v Woodward, 251 NY 275; Phillips v West Rockaway Land Co., supra). (Appeal from judgment of Cayuga Supreme Court, De Pasquale, J. — injunction.) Present — Simons, J. P., Hancock, Jr., Callahan, Doerr and Moule, JJ.