Harry G. Heyson and Henry C. Gipson, Respondents, v. Isaac Lichtenstein and Bessie Lichtenstein, Appellants

Harry G. Heyson and Henry C. Gipson, Respondents, v. Isaac Lichtenstein and Bessie Lichtenstein, Appellants. Second Department, June 20, 1913. Real property — suit to enjoin construction of buildings in violation of covenant — pleading — complaint — allegation in disjunctive — demurrer. Where, in a suit to enjoin the construction and maintenance of buildings in violation of a restrictive covenant, which provided that said land “ shall be used and occupied solely for the purpose of a private dwelling and a private stable or garage, to be used for and in connection with such dwelling house,” an allegation of the complaint, that the defendants have “ constructed certain sheds or outhouses not permitted by and in violation of the terms of the contract * * * and in violation of the covenants referred to in the deed of the said premises,” is in the disjunctive and a demurrer thereto should be sustained. Thomas, J., dissented. Appeal by the defendants, Isaac Lichtenstein and another, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 5th day of March, 1913, overruling a demurrer to the complaint. Frederick M. Czaki, for the appellants. J. Henry Work for the respondents. [MAJORITY — Per Curiam:] Per Curiam: Plaintiffs having an interest in enforcing restrictive covenants affecting land owned by defendants seek to enjoin the construction and maintenance of buildings upon said land. The covenant in question is to the effect that said land “ shall be used and occupied solely for the purpose of a private dwélling and a private stable or garage, to be used for and in connection with such dwelling house.” The allegation of the complaint is that defendants have “constructed certain sheds or outhouses not permitted by and in violation of the terms of the contract * * * and in violation of the covenants referred to in the deed of the said premises.” Defendants demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action, and from an order overruling said demurrer appeal. Except the words “constructed certain sheds or outhouses,” the allegation in the complaint above referred to is not the statement of a fact or facts, but a conclusion of law. Unless no shed or outhouse of any description can possibly be erected in connection with a dwelling house or a private stable or garage, without destroying the characteristic use of the land for these purposes, the complaint is insufficient, and defendants’ demurrer upon that ground should have been sustained. (Beckwith v. Pirung, 134 App. Div. 608.) Manifestly this is not the case. The allegation is in the disjunctive. For anything that appears, the “ shed or outhouse ” may have been a storm shed over one of the doors of entrance to the dwelling house, or a wagon shed forming part of the private stable, or it may have been a conservatory or a greenhouse. The burden is, in the first instance, on plaintiffs to show a violation of the covenant, not upon defendants to show a compliance therewith. The order overruling the demurrer should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with costs, with leave to plaintiffs, within twenty days .after the entry of the order herein, to amend the complaint upon payment of the costs of said demurrer and of this appeal. Jenks, P. J., Burr, Carr and Putnam, JJ., concurred; Thomas, J., dissented. Order overruling demurrer reversed, with ten dollars costs and disbursements, and demurrer sustained, with costs, with leave to plaintiffs within twenty days after entry of the order herein to amend the complaint upon payment of the costs of said demurrer and of this appeal.