Dollard v. Whowell , 160 N.Y.S. 544 ( 1916 )

Putnam, J.:

It is now settled that such a twenty-family apartment as defendant proposed building cannot be deemed “a detached dwelling house constructed for one family only.” The purpose of these larger buildings is to accommodate several families, forming what Chancellor McGill called “ a community house.” (Skillman v. Smatheurst, [1898] 51 N. J. Eq. 1. See Rogers v. Hosegood, L. R. [1900] 2 Chan. 388.)

Reformed P. D. Church v. M. A. Bldg. Co. (214 N. Y. 268) held that the term “dwelling house ” in the Murray Hill restrictions in Manhattan permitted an apartment house. But Judge Hisoook there pointed out (p. 273) that if the covenant had said private dwelling house, meaning a building designed for occupation by “one family only,” it doubtless would exclude an apartment house. (See, also, Allen v. Barrett, 213 Mass. 36.)

Appellant, however, contends that in Brooklyn in 1898 the term “ dwelling house ” was used as opposed to a tenement house, and that, in framing the terms of this covenant, the type of large and luxurious apartments was not in mind. The proofs, however, show that such apartment houses were then well known, and, indeed, that the object of this covenant was to exclude such buildings from within this area.

The point is also made that the neighborhood has suffered such changes that it would now be inequitable to enforce the covenant. The Brighton Beach railroad tracks have since been depressed and its right of way spanned by attractive bridges, and in other respects the residential character of the vicinage, especially to the north, has advanced since 1898, showing a progress the reverse of that in Trustees of Columbia College v. Thacher (81 N. Y. 311) where elevated roads had invaded the streets. It is true that apartment houses have been going up in the surrounding streets, but this circumstance rather tends to support the owners in Beverly square in setting a higher value upon the. security of their restrictions, which have still nine years to continue. (Thompson v. Diller, 161 App. Div. 98.)

Finally, if it be conceded that these restrictions may now fit the lots in the midst of Beverly square, such as those on East Sixteenth, Seventeenth, Eighteenth and Nineteenth streets, it is argued that Ocean avenue, where on both sides large apartment houses are becoming more frequent, should be relieved from this covenant so that the comparatively short frontage on the west side of Ocean avenue acquired by defendant might to advantage now yield its private residence character and be given up to more profitable apartment buildings.

However, this would treat independently one portion of such a common building scheme and fail to regard the mutual benefits from such a common general restriction for the greater privacy of the neighborhood. As was well said by Justice Kelby, the court cannot thus decree a radical change in one side of this restricted area “to the clear damage of the residents who have kept the faith of this covenant implicitly.”

I advise that this judgment be affirmed, with costs.

Jenks, P. J., Thomas, Oarr and Stapleton, JJ., concurred.

Judgment affirmed, with costs.