Eliza J. Alvord, Appellant, v. Thomas A. Fletcher, Respondent

Eliza J. Alvord, Appellant, v. Thomas A. Fletcher, Respondent. Restrictive covenant — relief not granted where the plaintiff is also violating' the covenant — erection of a tempora/ry church is not a violation of a covenant forbidding the erection of any buildings except dwellings and the usual outbuildings. Where in an action brought to prevent the erection of a building of a certain character on land, in violation of a covenant prohibiting such erection, it appears that the plaintiff, whose land was subject to the same covenant, maintained .thereon a building which was so close to the front line of the lot that if constituted a violation of the same covenant, the court is justified in refusing to continue an injunction granted pendente lite. Semble, that the erection, on land subject to a covenant prohibiting the erection thereon of “any building's except substantial dwellings and the usual outbuildings to dwellings,” of a meeting house or chapel, designed to be used by a congregation until' their permanent church edifice should be completed, probably within two years, at the expiration of which period the chapel is to be removed, does not violate the covenant. • Appeal by the plaintiff, Eliza J. Alvord, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 2'7th day of November, 1897, vacating a preliminary injunction granted, in the action. Milo J. Whitey for the appellant. Frank M. Tichenor, for the respondent. [MAJORITY — Per Curiam :] Per Curiam : The purpose of this action was to prevent the erection of a chapel or meeting house on the defendant’s land, in violation of a covenant to which the premises were subject, and which, among other things, prohibited the erection thereon of “ any buildings, except substantial dwellings and the usual outbuildings to dwellings.” A preliminary injunction was granted upon the complaint and an affidavit of the plaintiff’s attorney. This injunction was shortly afterward vacated at Special Term .upon affidavits in behalf of the defendant, which showed that the church proposed to he erected was merely a temporary building, to be used .by a congregation in the city of Mount Vernon until their permanent church edifice should.be completed, which would probably be within twenty-four months, at the expiration of which period the temporary church would be removed. The defendant also proved by affidavit that upon the plaintiff’s land, which was subject to .the same covenant, she maintained a building within thirty feet of the front line, although the covenant forbade the erection of any dwelling or other building within that space. It is very doubtful whether a temporary or portable church, such as this was, designed for use during a period not exceeding twenty-four months, while a permanent church was being erected, came within the prohibition of the covenant. But whether it did or not, the court, in the exercise of its discretion, was justified in refusing to continue the injunction pendente lite, because it appeared, without contradiction, that the plaintiff herself was maintaining on her own property a house built in violation of the very covenant, one of the provisions of which she was seeking to enforce against the defendant. The order should be affirmed, with ten dollars costs and disbursements to abide the final award -of costs in the action. All concurred. Order affirmed, with ten dollars costs and disbursements to abide the final award of costs in the action.