Schulman v. Ellenville Electric Co. , 288 N.Y.S. 11 ( 1936 )

Appeal from a judgment of the Supreme Court entered in Ulster county, denying an injunction, and dismissing the complaint, on an agreed statement of facts. The plaintiff and defendant took title by mesne conveyances from common grantors. The lands in question front on Main street, in the village of Ellenville, in said county. The defendant came into ownership of one parcel by deed containing the following provision: “ Provided however, and this conveyance is made and accepted upon the express condition that no building or part of any building shall be placed upon the said lot or any part thereof, within twenty-five (25) feet of the sidewalk on Main Street aforesaid; * * * and that a violation of these conditions shall cause the title of said lot to revert to the grantors, their heirs or assigns.” The defendant erected a building on its lot twenty-five feet back from the street. Subsequently the plaintiff, by mesne conveyances, came into title and possession of the remaining portion of the premises of the common grantors. Thereafter the plaintiff conveyed to the defendant another lot in the rear of defendant’s premises, and also an adjoining strip which extended the entire length of defendant’s two lots, from back to front, and to the edge of Main street. This deed contained warranties of title and quiet enjoyment, but contained no restrictions of any character whatever. At a later time the common grantors gave quitclaim deeds to the defendant releasing the defendant’s premises from the operation of said restriction. The defendant then commenced to build the front of its building out to the sidewalk of Main street. The plaintiff brought this action to enjoin the defendant, and to prevent the erection of such addition within twenty-five feet of the sidewalk. The reservation by way of restriction was a condition subsequent, and did not pass to the plaintiff by the deed to him, but passed to the defendant under the quitclaim deeds. Judgment unanimously affirmed, with costs. Present — Hill, P. J., Rhodes, McNamee, Crapser and Heffeman, JJ.