Albert H. Dollard and Isaac D. West, Respondents, v. Charles E. Whowell, Jr., Appellant

Albert H. Dollard and Isaac D. West, Respondents, v. Charles E. Whowell, Jr., Appellant. Second Department, July 28, 1916. Real property—restrictive covenant — buildings limited to one-family houses — erection of apartment house enjoined. Where a covenant running with lands for the benefit of adjoining grantees prohibits the erection of any building except “a detached dwelling house, * * * and that said house shall be constructed for one family only, * * * and that none of the above-mentioned buildings shall have a roof of the character or description known as a flat roof,” the erection of a modern twenty-family apartment house with a flat roof by one of the grantees will be enjoined, such building being prohibited by the restriction. Such injunction will be granted although on neighboring lands outside the restricted area modern apartment houses have been erected. Appeal by the defendant, Charles E. Whowell, Jr., from a judgment of the Supreme Court in favor of the plaintiff West, entered in the office of the clerk of the county of Kings on the 16th day of July, 1915, upon the decision of the court after a trial at the Kings County Special Term. The judgment restrained the defendant from erecting an apartment house upon premises on the westerly side of Ocean avenue, Brooklyn. The court found that the proposed building would be violative of a restrictive covenant which applied to this and other premises in the section of Flatbush known as Beverly square. In 1898 the lands were already restricted against nuisances. On November 10, 1898, Hr. Delbert H. Decker was owner of Ocean avenue westward to the line of the Brighton Beach railroad, and northerly from Cortelyou road. He then filed a map of this proposed improvement, on "which appeared a system of projected streets and avenues, which were thereafter laid out, graded, with curbs and sidewalks. Before conveying any land, a further series of restrictive covenants were adopted, and were inserted in all conveyances of every lot or parcel conveyed. The terms of such covenant here material are against erecting “ any building except a detached dwelling house, or a church and that said house shall be constructed for one family only, shall have a cellar and shall be not less than two stories in height and shall cost not less than $3,500 on East 16th Street and not less than $4,000 on all other streets of -Beverly square and that none of the above-mentioned buildings shall have a roof of the character or description known as a flat roof.” This covenant was to run with the land and continue until January 1, 1925. In the area thus restricted, detached one-family private residences have been erected, some having a value up to $25,000, and are generally occupied by the owners themselves. At the easterly end of this restricted area are three parcels extending along Ocean avenue, a wide thoroughfare where, in other blocks, apartment houses have been built. Defendant, in 1912, purchased four lots in the area of these restrictions, which together form a parcel fronting 100 feet on Ocean avenue, with a depth of 130 feet 4 inches. In July, 1913, defendant filed in the bureau of buildings of the borough of Brooklyn, plans and specifications for an apartment building on the parcel, four stories (about forty-six feet) high, with a flat roof, designed for the separate residences of twenty families, with the usual improvements of a modern apartment house. This proposed building would extend to within about eleven feet of the rear of defendant’s lot, and to within about twenty feet from the adjoining property at the side. Such proposed structure would be within about seventy-five feet of the plaintiff’s residential property. After a trial the court at Special Term enjoined the erection of this building as a breach of such restriction. By the judgment defendant was restrained, until, the 1st day of January, 1925, from erecting or permitting to be erected upon this property “any building except a church or a detached dwelling house constructed for one family only, and not less than two stories in height with a cellar, and costing not less than $4,000.” Defendant appealed to this court. Michael J. Joyce [Almeth W. Hoff with him on the brief], for the appellant. Henry M. Dater [James O. Miller with him on the brief], for the respondent. [MAJORITY — Putnam, J.:] Putnam, J.: It is now settled that such a twenty-family apartment as defendant proposed building cannot be deemed “a detached dwelling house constructed for one family only.” The purpose of these larger buildings is to accommodate several families, forming what Chancellor McGill called “ a community house.” (Skillman v. Smatheurst, [1898] 51 N. J. Eq. 1. See Rogers v. Hosegood, L. R. [1900] 2 Chan. 388.) Reformed P. D. Church v. M. A. Bldg. Co. (214 N. Y. 268) held that the term “dwelling house ” in the Murray Hill restrictions in Manhattan permitted an apartment house. But Judge Hisoook there pointed out (p. 273) that if the covenant had said private dwelling house, meaning a building designed for occupation by “one family only,” it doubtless would exclude an apartment house. (See, also, Allen v. Barrett, 213 Mass. 36.) Appellant, however, contends that in Brooklyn in 1898 the term “ dwelling house ” was used as opposed to a tenement house, and that, in framing the terms of this covenant, the type of large and luxurious apartments was not in mind. The proofs, however, show that such apartment houses were then well known, and, indeed, that the object of this covenant was to exclude such buildings from within this area. The point is also made that the neighborhood has suffered such changes that it would now be inequitable to enforce the covenant. The Brighton Beach railroad tracks have since been depressed and its right of way spanned by attractive bridges, and in other respects the residential character of the vicinage, especially to the north, has advanced since 1898, showing a progress the reverse of that in Trustees of Columbia College v. Thacher (81 N. Y. 311) where elevated roads had invaded the streets. It is true that apartment houses have been going up in the surrounding streets, but this circumstance rather tends to support the owners in Beverly square in setting a higher value upon the. security of their restrictions, which have still nine years to continue. (Thompson v. Diller, 161 App. Div. 98.) Finally, if it be conceded that these restrictions may now fit the lots in the midst of Beverly square, such as those on East Sixteenth, Seventeenth, Eighteenth and Nineteenth streets, it is argued that Ocean avenue, where on both sides large apartment houses are becoming more frequent, should be relieved from this covenant so that the comparatively short frontage on the west side of Ocean avenue acquired by defendant might to advantage now yield its private residence character and be given up to more profitable apartment buildings. However, this would treat independently one portion of such a common building scheme and fail to regard the mutual benefits from such a common general restriction for the greater privacy of the neighborhood. As was well said by Justice Kelby, the court cannot thus decree a radical change in one side of this restricted area “to the clear damage of the residents who have kept the faith of this covenant implicitly.” I advise that this judgment be affirmed, with costs. Jenks, P. J., Thomas, Oarr and Stapleton, JJ., concurred. Judgment affirmed, with costs.