Stuyvesant v. Mayor of New-York , 1845 N.Y. LEXIS 264 ( 1845 )

The Chancellor.

The first objection to the complainant’s claim, to a specific performance, which is urged by the appellant’s counsel in this case, is that the conditional grant of the land, to the corporation, as stated in the complainant’s bill, is not a compliance with the fourth section of the act of May, 1836; so as to authorize the alteration of the map and plan of the city. The condition that the lands should revert to the grantor, in case they should not be used for the purposes of a square, does not appear to be inconsistent with the object and intention of the legislature. For, under this act, the city corporation would have no right to use the lands for any other purpose than that of a public square; even if the grant was absolute and unconditional.' There is more difficulty, however, in bringing the other conditions of the grant within the act of May, 1836. It certainly could not have been the intention of the legislature to change the plan and map of the city, absolutely, on the receipt of a mere nominal grant of the lands, to be included in the square, upon such onerous terms and conditions that the public might be deprived of the use of the streets, as originally laid out by the commissioners, and also of the benefit of the public square with 'substituted passages on the east and west sides thereof. That is a question, however, which does not necessarily arise upon this bill for a specific performance. For if the defendants have not the legal right, under the act of May, 1836, to discontinue portions of Sixteenth-street, and to make the contemplated square, until there is an absolute grant of the land contained within the limits of the square, the court may make it a condition of the decree, for the specific performance of the covenant to grade, inclose and improve the square in the manner agreed upon by the parties in 1836, that the complainant shall make an absolute grant of the land to the corporation for the purpose of the public square; so as to bring it within the letter of the act of May, 1836. And it would be wrong to turn the complainant out of court upon that ground alone, where the objection is raised, for the first time, upon the argument of a general demurrer to the bill.

It is true, the bill shows that the defendants % have actually forfeited their right to the land granted for the square, by the non-performance of the conditions upon which it was granted. One of those conditions was that the corporation should immediately proceed to regulate the grounds, and enclose the square on each side of the avenue with a particular description of railing, and make the other specified improvements in the square. And from the allegations in the bill, it is perfectly evident that this condition of the grant has not been performed by the corporation, in good faith, either in form or in substance. The application, for a specific performance, however, is entirely inconsistent with the supposition that the complainant intends to insist upon the forfeiture. • And the objection that there is no express waiver of the forfeiture, in the bill, appears to be an objection of form merely; which should in this case, as I think, have been raised by a special demurrer.

The objection that the provision in the deed of cession, that the corporation' should immediately proceed to regulate the lands granted for the purpose of a public square, and should enclose and improve them in a particular manner, is a condition and not a covenant, cannot be sustained. It is true, the regulating, inclosing and improving of the land, is made a condition upon which the title of the corporation to the lands depends. But other language is used in the conveyance, which amounts to a covenant on the part of the corporation to perform such condition. The covenant to perform, abide by, and observe the conditions imposed upon the defendants by the acceptance of the deed, and which they have executed under their corporate seal, is an express covenant, not only to stand seised of the premises for the purposes of a public square, but also that they shall not be used for any other purpose; and that they will immediately proceed to regulate, enclose, and improve the premises, according to the conditions specified in the deed. (Shep. Touch. 122. Co. Litt. 203, b.)

The remaining question, and which is the important one in this case, is whether the instituting a suit at law for the breach of this covenant, and obtaining a satisfaction in damages in that suit, is a bar to a bill filed here for the specific performance of the covenant. For I have no doubt as to the right of the complainant to come into this court for the specific performance of such a covenant, in the first instance, upon a waiver of the forfeiture arising from the non-performance of the condition. The true rule on the subject of decreeing the specific performance of a covenant in such cases, is, that where, from the nature of the relief sought, performance in specie will alone answer the purposes of justice, this court will compel a'specific performance, instead of leaving the complainant to a remedy at law, which is wholly inadequate. The court has jurisdiction, therefore, to compel the specific performance, by the defendant, of a covenant to do certain specified work, or to make certain improvements or erections upon his own land, for the .benefit of the complainant, as the owner of the adjoining property, who has an interest in having such work done or such improvements or erections made; and where the injury to the complainant, from the breach of the covenant, is of such a nature as not to be capable of being adequately compensated in damages. (Storer v. Great Western Railway Company, 2 Young & Col. N C. 48.)

When the condition upon which the land was granted, for the purposes of the square, was broken, by the neglect of the defendants to proceed immediately to regulate the lands granted, and to enclose .and improve them within a reasonable time, according to the condition of the grant and the obligation of their covenant, the complainant had the right, at his election, either to waive the forfeiture and file his bill here, to compel the defendants specifically to perform their covenant to regulate, inclose, and improve the land, and to pay him the damage they had sustained or might sustain by their neglect to do it within the year, which is stated to have been a reasonable time for that purpose, or to insist upon the forfeiture, and repossess himself of the land, for a breach of the condition. He also had a right to resort to a suit at law, upon the covenant of the defendants to proceed immediately to regulate, inclose and improve the land for the purpose of a square, and for his benefit as the owner of the adjoining lands. But this was an entire, and not a continuing covenant; and it had been wholly and entirely broken at the time of the commencement of the suit at law, against the defendants. For the declaration in that suit, as well as the bill in this, averred that the defendants might and could have regulated,inclosed and improved the premises, in the manner prescribed in the covenant, within one year from the date of the grant. And the breach assigned was that the defendants had not proceeded to regulate the premises, nor had they inclosed or improved the same, down to the time of the commencement of that suit; which suit was commenced nearly three years after the making of the grant. In this respect, the covenant of the defendants is like a covenant to build a house, for the benefit of the covenantee, or for the enhancement of the value of his property, within a specified time; or as soon as it can reasonably be done. There, if the person claiming the benefit of the covenant waits until the time for building the house expires, and then brings his suit at law, to recover damages for the breach of covenant, and obtains a verdict and judgment in that suit, his remedy upon the covenant is exhausted ; and no new action can be brought, for not building the house after the expiration of the time specified in the covenant.

In the case under consideration, the effect of exhausting the remedy of the complainant, by a suit at law upon the covenant, after an absolute and entire breach thereof, was .to leave the defendants at liberty to inclose and improve the premises in such manner as they might deem expedient, and without violating the other covenant in the deed of cession; to wit, that the lands granted should at all times and forever thereafter be appropriated to, and used exclusively for, the purposes of a public square. This last covenant is a Continuing one; upon which actions may be sustained from time to time, as often as the defendants appropriate the property, or suffer it to be appropriated, to any purpose other than that of a public square, until the complainant thinks proper to enforce the forfeiture, for breach of the condition. The amount of the recovery in each successive action, upon that covenant, would be only the damages for breaches which had occurred at the time of the commencement of the suit. And the recovery of such damages would not be a bar to an action for a subsequent misappropriation of the premises, to purposes prohibited by the covenant. But upon the covenant to' proceed immediately to regulate the grounds, and to inclose and improve them in a particular manner, the complainant should have claimed damage, in his action at law, for the breach of that covenant, to the extent of the injury which his property would probably sustain, by permitting the defendants to inclose and improve the square in such, manner as they might deem proper; instead of inclosing and improving it in the particular manner specified in the deed of cession, and within the time required by the condition of that deed. And if the court, before which that action was tried, either with the complainant’s assent or otherwise, adopted a wrong rule of damages, for the breaches of the covenant which had occurred at the time of the commencement of that á'ction, this court has not the power to correct the error, by decreeing a performance of the covenant; for the entire breach of which covenant the recovery in that action was, in legal contemplation, a full satisfaction.

Although the claim of the complainant, to have a specific performance of the covenant for the breach of which he has already obtained a legal satisfaction in the suit at law, cannot be sustained, I think this general demurrer to the whole bill is not well taken. For thé bill shows a breach of another of the covenants, in relation to the uses to which the premises embraced in the grant shall be appropriated. And under the alternative prayer, for such other relief as the complainant may be entitled to, I think he may claim a specific performance of the condition, and covenant, that the lands granted for the purposes of a public square, shall be appropriated and used for that purpose exclusively. The bill states that the lands granted for a public square, have never been inclosed or improved, in any manner whatever, down to the time of filing of such bill, and that individuals have been permitted to occupy parts of such lands with shanties and pig sties; although, as the bill alleges, the lands granted for Stuyvesant square still remain in the hands of the corporation, under the conveyance from the complainant. This is clearly such an injury to the complainant, in reference to his adjacent property, as will authorize this court to decree a specific performance of the covenant that the premises shall be used for the purpose of a 'public square exclusively; and, in such decree, to require the defendants to remove these nuisances, and to keep off all intruders, upon the premises, whose occupation of any parts thereof is inconsistent with the purposes for which the lands were granted. Although the permitting of süch a use of the premises, involves a forfeiture of the grant in case the complainant thinks proper to enforce the forfeiture, for this breach of the condition upon which the lands were granted, he is not bound to claim the forfeiture; but may resort to his suit to compel a specific performance of this covenant. And without re-entering for the breach of the condition, the complainant cannot himself remove these nuisances, without committing a trespass upon the defendants’ property; nor can he keep off intruders who may settle upon the premises. It is true he may bring successive suits against the defendants, for their breaches of the covenant that the lands shall be used exclusively for the purpose of a square. For under that continuing covenant the defendants are bound to see that the premises are used for no other purpose. But the remedy at law is wholly inadequate to the protection of the complainant’s rights, in this respect ; and the nature of the injury is such as to be incapable of an adequate compensation in damages. The defendants, therefore, if they do not think proper to inclose and improve the premises, immediately, in the manner specified in the deed of cession, must at least do so much as is necessary to prevent the lands appropriated for a public square, from being used by ip-traders, or others, for any other purpose; to the injury of the complainant’s adjacent property.

For these reasons, although I cannot agree with the assistant vice chancellor, in the conclusion that the convenant to inclose and improve the premises in a particular manner, and without unreasonable delay, was not merged in the recovery in the action at law, so as to deprive the complainant of the right to come here for a specific performance of that covenant, still the decre-tal order, overruling the general demurrer, as a defence to the whole relief sought by this bill, must be affirmed. For upon a general demurrer, if the complainant, is entitled to any relief, whatever in this court, upon the case made by his bill, the demurrer must be overruled. The decretal order appealed from must, therefore, be affirmed with costs; but without prejudice to the right of the defendants to insist, in their answer, that the judgment, in the action at law, is á bar to so much of the relief, sought by the bill, as seeks a specific performance of the covenant to proceed immediately and regulate the lands granted for a public square, and to inclose and improve them in the particular manner specified in the deed of cession, or for subsequent damages on account of any supposed breach of that particular covenant.

Order accordingly.