Dexter v. Beard , 2 Silv. Sup. 106 ( 1889 )

Hardin, P. J.

After an examination of the case presented us by the appeal papers, we have come to the conclusion that the decision made at special term should be sustained. We are satisfied with the opinion delivered by the trial judge at the special term, and therefore we follow it in disposing of the case before ns. In addition to the questions discussed in that opinion, it is now insisted in behalf of the appellant that the covenant not to build upon the lane should not be enforced in equity “where the plaintiff can have full indemnity in damages.” Whether she could obtain full damages by an action or actions at law was not made clear at the trial. How could the depreciation of the plaintiff’s property, and the effect thereto of the encroachments and obstructions in the future, be determined and recovered in an action at law. Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. Whether an injunction should issue or not in a case like this is a question calling for the discretion of an equity court. The discretion is not an arbitrary one, but is such a judicial discretion as follows well-regulated equity principles and precedents. We think the discretion was exercised in the right direction by the special term, and in accordance with the principles and precedents adopted and approved by the court of last resort. Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. Rep. 67, and cases referred to in the opinion of Finch, J.; Story v. Railroad Co., 90 N. Y. 122; Davis v. Lambertson, 56 Barb. 480; De Witt v. Van Schoyk, 35 Hun, 103, and cases referred to in the opinion of Hardin, P. J., affirmed 110 N. Y. 7, 17 N. E. Rep. 425, and the opinion delivered in this court approved. It is quite apparent that the object of the covenant in respect to the open space was to secure the space from incumbrances and buildings, and therefore “the injunction of a court of equity to enforce the covenant was proper.” Insurance Co. v. Insurance Co., 87 N. Y. 401. The change in the neighborhood and circumstances surrounding the subject of the covenant in the case reported as Trustees v. Thacher, 87 N. Y. 311, were exceptional, and the court in its decision did not intend to disturb the rule stated in the cases to which we have alluded. These views lead us to sustain the decision made at special term. Judgment affirmed, with costs.

Martin, J., concurred. Merwin, J., not sitting.