Porter v. Waring ( 1874 )

Van Brunt, J.

This action- is brought to restrain an alleged breach of a covenant, contained in a deed from the plaintiff to the defendant.

In disposing of this question I shall not attempt to discuss whether the plaintiff has, by any act of his or of his agent, Professor. Dwight, lost the right to enforce this covenant because the weight of evidence is decidedly in favor of the plaintiffs upon all those questions, and the claim made by the defendant in this respect must be considered as not established by the evidence, and if there has been a violation of the covenant the plaintiff has still the right to enforce obedience to it. The covenant in question is in these words: “ The stable shall be constructed to correspond of like Philadelphia brick, with like trimmings; there shall be no openings in the sidewalk in front of the stable, which shall be used only as a private stable,- and shall be so managed as to leave the street in front of it free from stable rubbish or unnecessary annoyance of any kind.”

It is conceded that there is an opening in front of the stable some five feet wide, and if it is in the sidewalk it is undoubtedly a breach of the covenant. Some of the witnesses upon the part of the plaintiff have sworn that this opening is in the sidewalk, but the claim is made by the defendant that it is not. By the diagram of the premises, which it is admitted to be correct, it is shown that the opening is within that line of fence adopted by the owners of all the lots from the Third avenue to Lexington avenue; that no part of the opening is within the boundaries of what is ever used or can ever be claimed to be used as a part of the sidewalk. There is no evidence whatever that this fence encroaches in the least upon the sidewalk or that all that portion of the street which the laws require has not been devoted to the purposes of sidewalk.

A sidewalk is defined to be “ a raised way for foot passengers at the side of a street or road — a foot pavement.” I cannot find from the evidence in this case that any part of the space occupied by this opening could by any authority whatever be required to be devoted to the use of foot passengers. It necessarily follows from these views that the opening is not in the sidewalk, and that there has been no breach in the covenant.