Schoonmaker v. Heckscher , 157 N.Y.S. 75 ( 1916 )

Laughlin, J. (dissenting):

It is conceded that the agreement containing the restrictive covenant was drawn by one of the most able counsel of his day. I am opinion that if he understood that the parties intended to have the restriction extend only to the lots owned by them within the area described in the opinion of Mr. Justice Page, he would have indicated the restricted area by stating that it extended to the lots owned by the parties within the area bounded by Thirty-eighth street, Lexington avenue, a line midway between Thirty-third and Thirty-fourth streets and Madison avenue, or bounded by Thirty-eighth street, Lexington avenue, Thirty-fourth street and Madison avenue, including the street lots on the southerly side of Thirty-fourth street between said avenues, instead of employing upwards of fifty words to specify the street lots and the avenue lots. It is reasonable, I think, if it was not intended that the restriction should extend to the lots on the westerly side of Madison avenue, that a plain simple description, such as I have indicated, would have been employed, instead of the words found in the agreement, “lying on each side of 34, 35, 36 & 37th Streets and on the south side of 38th Street lying between Madison Avenue on the westerly side and Lexington Avenue on the easterly, and also on said Madison Avenue, Lexington Avenue and 4th Avenue. ” The manifest purpose, I think, of adopting the method employed was to show the intention of the parties to extend the restrictive covenant to all street lots owned by them shown on the map of the Murray Hill estate, to which reference is made in the agreement, lying between Madison avenue on the west and Lexington avenue on the east, and Thirty-eighth street on the north, and Thirty-fourth street on the south, including also the street lots on the southerly side of Thirty-fourth street between Madison avenue and Lexington avenue, and all lots owned by the parties shown on said map fronting on either side of any of the three avenues, with the possible exception of the two lots on Madison avenue north of Thirty-eighth street which are not in question here.

I, therefore, vote for reversal.

Judgment affirmed, with costs.