Simons v. Mutual Construction Co.

Houghton, J. (dissenting):

The stipulated facts do not show the size of the tract of land conveyed subject to the covenant in controversy, except that it-was a “ large tract,” and consisted of a farm then in the county of West Chester, now in the'borough of the Bronx, in the city of Hew York, and that it had thereon no buildings other than farm buildings, and . that it was not plotted with streets and lots. The deed containing the covenant was made -in 1865, and since that time, streets have been laid out and the. property has been extensively built upon,. One of these streets is known as the Southern boulevard, upon which these parties own contiguous lots. It is stipulated by the record that the Southern boulevard is the principal business thoroughfare of the borough of the Bronx east of Third and Westchester avenues, and that it is used principally for business purposes and' has a trolley-car line, and is built up with apartment and tenement houses with and without stores. The record shows that from the time the covenant was made to the present the character of the property has changed from farm land to city lots thickly built upon and thickly populated. The covenant prohibits the use of the land for almost everything that could be enumerated, except dwelling houses, including meat shops and bakeries.. Both meat shops and bakeries are necessities in large cities. Presumably the covenant was made for the benefit of the land. If these necessities cannot be provided for within easy reach of the inhabitants, the land will be injured instead of benefited. It seems to me, therefore, that the covenant as to the maintenance of a bake shop should be held to give way to the changed condition under the theory enunciated in Trustees of Columbia College v. Thacker (87 N. Y. 311) and kindred cases.

Assuming that there is no ambiguity in the covenant as to a “ sugar or other bakery,” and that it includes an ordinary bread and cake bakery such as the defendant proposes to install and operate, and conceding that its maintenance would cause some annoyance and discomfort to the plaintiff, still ! think judgment should be directed for the defendant and I so vote.

Judgment ordered for plaintiff. Settle order on notice.