Alvord v. Fletcher

Full title: ELIZA J. ALVORD, Appellant, v . THOMAS A. FLETCHER, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 1, 1898

28 App. Div. 493 (N.Y. App. Div. 1898)

51 N.Y.S. 117

Opinion

April Term, 1898.

Milo J. White, for the appellant.

Frank M. Tichenor, for the respondent.

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 be 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.