William Gubbins, Respondent, v. Charles G. Peterson, Appellant

William Gubbins, Respondent, v. Charles G. Peterson, Appellant. Restrictive covenants in a deed—when they are not violated by making a house face on another street. The owner of two parcels of land, one on the east and the other on the west side of Eighth avenue, conveyed the land on the west side to a party with whom he entered into an agreement simultaneous with the conveyance by which it was agreed that there should not be erected upon the above-mentioned parcels of land “ any building of less than three stories in height, to be used or occupied for any purpose other than as private dwellings of stone or brick, and that no flat, apartment or tenement house or houses ” should at any time thereafter be erected .upon such premises or any part thereof. He subsequently conveyed the land on the east side of the avenue, which faced both on Eighth avenue and on Plaza street, and was at the time of both conveyances restricted by chapter 613 of the Laws of 1870, in regard to the character of the buildings which might be erected thereon facing on the plaza, this plaza being referred to in the agreement above mentioned as a boundary of the lot. Held, that the covenants in the agreement ran with the,land ; That they did not require the grantee under the second conveyance to front on Eighth avenue any houses he might build on the lot thereby conveyed. Appeal by the defendant, Charles Gr. Peterson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of January, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term. On the 1st day of May, 1890, Alfred C. Chapin, having title to a parcel of land lying west of and bounded for upwards of 130 feet on Eighth avenue, in the city of Brooklyn, and having title to another parcel of land east of and bounded for 75 feet upon that avenue, entered into an agreement with the plaintiff simultaneously .with the conveyance to him of the parcel first above mentioned, and thereby covenanted to and with him that he would not at any time thereafter .erect, permit or allow to be erected upon any part of the premises above mentioned “ any building of less than three stories in height to be used or occupied for any purpose other than as private dwellings of stone or "brick; and that no flat, apartment or tenement house or houses ” should at any time thereafter be erected upon such premises or any part thereof “ not conveyed by the deed hereinbefore mentioned ” to the plaintiff. And the plaintiff thereby covenanted that he would not erect or allow to be erected upon any portion of the land so conveyed to him “ any building of less than three stories in height to be used or occupied for any purpose other than as private dwelling houses of stone or brick; and that no fiat, apartment or tenement house or houses ” should at any time be erected upon such land or any part thereof. Afterwards, on or about October 31, 1894, Chapin conveyed the portion of the premises lying on the east of said Eighth avenue to 'Mary E. Perrett, who soon thereafter conveyed them to the defendant. They are bounded on the east by Plaza street. The judgment directed by the Special .Term and entered enjoined the defendant from erecting any building upon the premises conveyed to him facing otherwise than upon Eighth avenue. James P. Philip, for the appellant. E. J. McCrossin, for the respondent. [MAJORITY — Bradley, J.:] Bradley, J.: The covenant in the agreement made between Chapin and the plaintiff simultaneously with the conveyance made to. the latter of the land lying west of and bounded by Eighth avenue, restrictive as to the character of the structures to be erected on that and 'the land on the east side of the avenue, afterwards conveyed to the defendant, ran with the land, and the defendant was charged with notice of such restrictions, and took his title subject to them. The only question in the present case lias relation to the interpretation of the covenant, and is whether or not it was such as to require that any houses erected on the premises conveyed to the defendant, be so constructed as to front on Eighth avenue. The alleged occasion for the action is that he has filed with the building department of the' city of Brooklyn, plans and specifications indicating his purpose to erect four dwelling houses on the premises, to front on Plaza street. It may be observed that the covenant' does not in terms express the direction in reference to any street or otherwise which houses erected on any , portion of the premises coming within its operation should front. But it is urged on the part of the plaintiff that, in view of the apparent situation and circumstances, the implication arises from the terms of the covenant, as within the contemplation of the parties to the instrument, that the houses erected on any portion of the premises were to front on that avenue. This contention is founded in part upon the fact that Eighth avenue was then a desirable street for first-class dwelling houses, that it was contemplated that the houses to be erected on the premises bordering it on the west would front on the avenue, and consequently it would be more agreeable to have fronts than rears of houses on the opposite side and render the avenue in that locality more desirable. This may have been within the expectation of the plaintiff when he made his purchase, and he may then have had no apprehension that any owner of the portion of the land referred to, unconveyed to him, would erect such a building as the covenant permitted, fronting elsewhere than upon the avenue. At the time of the conveyance to the plaintiff in 1890 the residue of the property within the operation of the covenant, which was afterward conveyed to the defendant, faced on both the plaza and Eighth avenue. The plaza was the subject of statutory provisions enacted in the year 1870, whereby the Brooklyn park commissioners were authorized to lay out a street eighty feet wide within the plaza of Prospect park; and thereby restrictions were placed upon the character and purpose of buildings erected on the land facing the plaza, and the character of materials of which they were to be constructed, and the manner of their construction were to some extent defined. (Laws 1870, chap. 613.) Inasmuch as the land conveyed to the defendant faced upon the plaza, the conveyances to his grantor and to him were by the terms of the deeds made “ subject to the covenants and restrictions as to buildings and against nuisances contained in former deeds of said premises and in agreements of record affecting the same, and also to the restrictions imposed and benefits conferred upon said premises by Chapter 613 of the Laws of 1870 of the State of New York.” The park plaza is also referred to in the agreement first above mentioned as the eastern boundary of that portion of the premises lying east of Eighth avenue which was after-wards conveyed to the defendant. The plaintiff, therefore, was advised, when he took his conveyance from Chapin, that tbe premises in question faced upon a public place or street other than Eighth avenue and substantially parallel with it. How then can it be seen in the terms of the covenant that, in view of the situation as it was at that time, the parties must have intended that buildings to be erected upon that portion of the premises should front only upon the avenue ? The question of desirability to be' entertained by the owner of it was one for his' consideration and about' which the view of the people in. that relation might differ. At all events, the fronting of a house upon the plaza, instead of on ' the avenue, was not so clearly contrary to all reason, and judgment as to necessarily raise, the implication that the covenant was intended to permit the latter only. There is no ambiguity in the phraseology of the agreement presenting any question of doubtful meaning. And it is a well-settled proposition that restrictions upon title taken by grant will not, as against the grantee, be extended beyond those which the instrument creating them by its terms or by necessary implication imports. (Duryea v. Mayor, 62 N. Y. 592; Blackman v. Striker, 142 id. 555.) It is true that the qualified use of the premises by the defendant was made appurtenant to them by the common grantor of the parties for the benefit of the plaintiff in his relation to the property purchased, by him. And it may be that he had in view the frontage on Eighth' avenue of any house which should be erected on the premises which were afterward conveyed to the defendant. But his expectation or understanding in that respect, whatever it may have been, cannot enlarge the import of the covenant as against the defendant, who, so far as relates to its restrictive provisions, must be deemed to have purchased in reference only to its terms, and with a View to the interpretation of which they were fairly susceptible. (Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307.) Nothing appears in the evidence to characterize the united intent of the parties in making the agreement other than such as the language employed expresses it. It is not seen that the fact that the premises are described in maps in city departments and upon the assessment rolls as upon Eighth avenue has any essential bearing upon the. question arising upon the covenant. They do not qualify the fact • that the land is bounded by the two streets. It" cannot be assumed that the rear of any dwelling house will be so constructed upon the premises as to render it or its use a nuisance." It certainly may not, nor will the premises thereby necessarily be made so in their relation to the street in the rear of them. And, therefore, no such question is now here for consideration. These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the final award of ■costs. All concurred. Judgment reversed and new trial granted, costs to abide the final award of costs.