Bull v. . Burton

On December 27, 1911, the parties entered into a contract by which the plaintiffs agreed to sell, and defendants to purchase, a lot on the westerly side of Fifth avenue in the city of New York, between Thirty-ninth and Fortieth streets, known as No. 448. The lot has a frontage of 33 feet on the avenue and is 110 feet deep. The contract price was $650,000, of which $25,000 was paid at the time the contract was signed. On the day fixed for passing title, defendants refused to complete the purchase, on the ground that the title tendered was unmarketable, in that it was incumbered by certain restrictive covenants not mentioned in the contract. This action was then brought to compel them to specifically perform. The issues raised by the pleadings were sent to a referee to hear and determine. He made a report in favor of defendants, upon which judgment was entered, which was unanimously affirmed by the Appellate Division. Plaintiffs appeal to this court.

The referee found, as a fact, that plaintiffs' title was derived from one John D. Wendel, through a deed of conveyance bearing date the 13th of September, 1859; that this conveyance contained the following covenant on the part of the grantee: "And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said John D. Wendel, his heirs, executors and administrators, that neither the said party of the second part nor his heirs or assigns shall or will, at any time hereafter, erect any buildings within forty feet of the front of said lots, except of brick or stone, with roofs of slate or metal, and will not erect or permit upon any part of said lots any slaughter house, smith shop, forge furnace, steam engine, brass foundry, nail or other iron foundry, or any manufactory of gun powder, glue, varnish, vitriol, ink or turpentine, or for the tanning, dressing or preparing skins, hides or leather, or any brewery, distillery or any other noxious or dangerous trade or business;" that on the 27th of February, 1864, title to the lands vested in one Brady, who was also at that time the owner of an undivided half of the lot of land next adjoining on the north fronting 32 feet 9 inches on Fifth avenue; that on that day Brady entered into an agreement with one Babcock, who at that time was the owner of the remaining undivided half of the last-mentioned lot and was also the owner of the next adjoining lot fronting 33 feet on Fifth avenue; that this agreement contained the following provision: "It is further covenanted, declared and agreed that all the lots of ground hereinbefore described are already subject to the covenant against nuisances and regulating the character of improvements to be made thereon contained in a deed of conveyance from John D. Wendel and wife to Henry A. Hurlbut * * *. And it is further covenanted, declared and agreed that neither of the parties to these presents or his or their heirs or assigns shall or will, at any time hereafter, erect or use, or permit to be erected or used upon any of the said lots of ground hereinbefore described, any stable either public or private." Then followed provisions as to a party wall, its construction and use, which it seems to me unnecessary here to consider.

The referee also found as a fact that at the time of the conveyance from Wendel to Hurlbut, in 1859, and the agreement between Brady and Babcock, in 1864, Fifth avenue in the city of New York, from Twenty-third to Forty-fourth streets, was used and occupied as a residential district and the most valuable use to which the land on said avenue could be devoted during said period was for residences; that beginning with the year 1903 the character and use of the buildings on Fifth avenue between the streets named commenced to change, the residential buildings being altered for business use, or being torn down and new buildings erected, suitable for business, in place thereof; that such changes continued until the year 1911, at which time, and at the time of the trial of the action, the character of the improvements on the entire avenue between said streets had undergone a complete change and the only profitable use that could be made of the land fronting on the avenue was for business purposes; that the value of the land had greatly increased since the conveyance by Wendel and the agreement between Brady and Babcock, which increase was due to the change in the character of the buildings and the use to which the same were put; that the existence of the party wall was not a burden upon the land, no matter what might be the character of the improvements erected, but on the contrary could be used advantageously as part of the side wall of any structure that might be erected thereon; that it did not diminish the market value of the land; and so much of the covenant contained in the deed from Wendel as provided against the erection of a slaughter house, smith shop, furnace, etc., did not diminish the respective market value of the land in question because it was far too valuable from an economic point of view to be devoted to any such use and because of such value no person would be likely to devote the premises to any of the uses forbidden. Nor did the agreement between Brady and Babcock as to the erection of a stable diminish, in any respect, the market value for a similar reason.

As conclusions of law he found that none of the covenants in the deed from Wendel to Hurlbut, or the agreement between Brady and Babcock, were incumbrances upon the land or constituted a valid objection to the title tendered, except the one in the deed from Wendel to Hurlbut by which the grantee agreed not to erect or permit upon the lots any slaughter house, smith shop, forge, furnace, etc., and as to that he found such covenant did constitute an incumbrance and was a valid objection to the title.

In view of the unanimous affirmance by the Appellate Division of these findings and conclusions of law, the question is squarely presented whether the covenant in the deed from Wendel to Hurlbut in 1859, not to erect or permit to be erected on the lot in question any slaughter house, etc., constituted a valid objection to the title and justified the defendants in rejecting it.

I am of the opinion it did not. There is not a particle of proof in the record, as I read it, nor was it assumed at the trial, that Wendel, at the time he made the conveyance in 1859, was the owner of other contiguous or neighboring lands which he retained and for the benefit and protection of which the covenant and restriction were inserted. If he were not, then there is no one, so far as appears from the record, to enforce compliance with such covenant. It was, at most, a personal covenant and its recognition in the agreement of 1864 did not enlarge its scope. (Korn v. Campbell, 192 N.Y. 490.) Specific performance should have been decreed upon this ground. Respondents, recognizing the force of this contention upon the argument before this court, sought to supply this proof, which we held could not be done. Evidence to sustain a judgment on appeal to this court can only be supplied when the matter is of record and cannot be answered or changed. (People v. Flack, 216 N.Y. 123.) To permit evidence to be supplied as suggested by respondents would introduce an issue which this court could not determine.

But even assuming that Wendel did have other lands for the benefit of which this restrictive covenant was inserted in his deed of conveyance, I am still of the opinion that specific performance should have been decreed. When this deed of conveyance was made, the locus inquo was devoted to residential purposes. It has ceased to be such and at the time the parties to this action entered into their agreement substantially all of the buildings on either side of the avenue between Thirty-fourth and Forty-fourth streets were devoted exclusively to business purposes. The character of the buildings on the avenue has entirely changed. The purpose of the covenants, by reason of such change, can no longer be accomplished. If all the restrictions imposed should be strictly enforced it would not restore to the locality its residential character. The only effect would be to lessen the value of the property, without conferring a corresponding benefit upon any one. The property in the locality has, by reason of the change, become enormously valuable. The contract price of the lot in question was upwards of $179 a square foot — nearly $19,700 a foot on the avenue. Under such circumstances, it seems to me the height of absurdity to claim that a restrictive covenant not to erect a slaughter house, blacksmith's shop, stable, or manufactories of the kind specified, is an incumbrance of such a character as to prevent the passing of good title.

The case, in principle, therefore, is brought at least within the spirit of the rule laid down in Columbia College v.Thacher (87 N.Y. 311); McClure v. Leaycraft (183 N.Y. 36), and Batchelor v. Hinkle (210 N.Y. 243). (See, also, Jackson v. Stevenson, 156 Mass. 496; Roth v. Jung, 79 App. Div.. 1;Deeves v. Constable, 87 App. Div. 352; Schwarz v. Duhne,118 App. Div. 105; Schefer v. Ball, 120 App. Div. 880; affd.,192 N.Y. 589.)

In determining whether a court of equity will compel the observance of covenants restricting the use and occupation of real estate, each case must necessarily depend upon its particular facts. Upon the facts necessarily in this case, I think it would be unjust and inequitab to hold the title of the lot in question unmarketable.

The judgments appealed from, therefore, should be reversed and a new trial ordered, with costs to abide event.

COLLIN, HOGAN and CRANE, JJ., concur with CHASE, J., for affirmance; HISCOCK, Ch. J., and CUDDEBACK, J., concur with McLAUGHLIN, J., for reversal.

Judgments affirmed.