Opinion
April 16, 1920.
Samuel Hellinger, for the appellant.
Benjamin Reass [ Hugo Hirsh and Emanuel Newman with him on the brief], for the respondent.
The learned trial justice has considered the objections to the title presented by the plaintiff on the closing day and we agree with his conclusions in his opinion filed. ( Goldstein v. Hirsh, 108 Misc. Rep. 294.) We will refer to but one of the objections, to wit, the claim of the plaintiff, vendee, that the restrictive covenant in the deed of 1850 prevented the maintenance of the garage erected upon the premises. This is not the usual case of a vendee who objects to the marketability of a title because of restrictive covenants discovered in the search thereof. The plaintiff knew of the restrictive covenants when he made the contract, and agreed to take the property subject thereto. He knew that the premises were occupied as a public garage and he desired to use them for that purpose. The question presented by the pleadings is not, strictly speaking, whether the title is marketable, but whether the restrictions known to the purchaser, who was also familiar with the location and use of the property, prohibit the maintenance of a public garage on the premises. The garage in question was on the property when the plaintiff agreed to purchase. It appears that it was erected under a permit of the board of standards and appeals under the zoning ordinance of the city of New York.
The plaintiff agreed to take the property subject to the restrictions contained in the deeds under which defendant held the title. The plaintiff must, therefore, be deemed to have known the facts disclosed by the record ( Acer v. Westcott, 46 N.Y. 384), and every other fact which an inquiry suggested by the record would have led up to. ( McPherson v. Rollins, 107 N.Y. 316; Riggs v. Pursell, 66 id. 193; Kingsland v. Fuller, 157 id. 507; Moot v. Business Men's Investment Assn., Id. 201; Schnitzer v. Bernstein, 119 App. Div. 47.) The only question arising on this restrictive covenant is whether it prevents the maintenance of the garage.
The covenant in the deed of 1850 applied to a parcel of land which included the premises described in the complaint, and prohibited the erection thereon of buildings for carrying on various trades and occupations commonly described as nuisances, including "omnibus, livery or cow stable," and terminating with the words "or other dangerous, noxious, unwholesome or offensive establishment trade calling or business whatsoever offensive to the neighborhood." It is evident that in 1850 when the restrictive covenant was entered into, none of the parties had in mind a garage for the storage of automobiles. We agree with the learned judge at Special Term that the express covenant against "omnibus, livery or cow stable" did not apply to this building. When we depart from the occupations expressly prohibited and seek for interpretation of the general prohibition of other "dangerous, noxious, unwholesome or offensive establishment trade calling or business," we find the qualifying words "offensive to the neighborhood." There is no evidence in the record that the defendant's garage has been, is or will be offensive to the neighborhood. It is true that plaintiff introduced in evidence the record of the board of standards and appeals of the city of New York containing the resolution permitting the defendant's predecessor in title to erect a garage upon the premises, which record is said to contain objections to the permit filed by five individuals and consents by two, but there is no evidence from any one of them justifying a finding that the garage is or will be offensive. Only one of the objectors was called as a witness for the plaintiff, and he testified that as constructed he did not think it any detriment and that he had no objection to it. While it may be that we should not take judicial notice of the conditions prevailing in the block in which the garage is located, the evidence at the trial fully justified the finding of the learned trial judge that this garage is not offensive to the neighborhood. And this finding was made after the judge had personally examined the locality in pursuance of a stipulation by the parties. The evidence shows that there is an elevated railroad operated in Lexington avenue, that there are several garages in the immediate neighborhood, liquor stores on the corners, a tailor shop, a barber shop, a large warehouse on the opposite side of the street, and the only residences testified to are tenement houses of the cheapest kind. One of the witnesses at the trial testified that the defendant's garage was the "most beautiful building on the entire block." It would seem that the conclusion of the trial judge was justified by the evidence. It cannot be said as matter of law that the defendant's garage is noxious, unwholesome or offensive to this neighborhood, and the doctrine noscitur a sociis does not justify the court in finding offensive conditions which are not shown to exist, but which, on the contrary, are negatived by the evidence in the case. We are satisfied that there is no reasonable probability that the maintenance of the garage in question in a legitimate and proper manner could be enjoined as violative of the covenant.
The judgment should be affirmed, with costs.
MILLS and PUTNAM, JJ., concur; BLACKMAR, J., reads for reversal, with whom JENKS, P.J., concurs.
I dissent.
The prohibition against the maintenance of the garage is not found in the use of the word "stable." If it be prohibited, it is by the general clause against offensive business. Under the doctrine of noscitur a sociis, that means a business that is offensive in the same way that a stable or other prohibited use is offensive. A stable is offensive to the sense of smell and to the sense of hearing, and is unsightly and, therefore, offensive to the eye if it should be placed in a residential neighborhood. Whether a garage is offensive in the same way or not is a question which may be raised in an action by any property owner interested in the restriction. It is certainly as offensive to the sense of hearing as a stable, if not more so. There is to a less extent an offense to the sense of smell, due to the oil and gas used. I, therefore, think that this is not a case where the purchaser is bound to take the risk of litigation on this point.
Whether or not the change or alteration in the condition of the neighborhood is such as to render it inequitable specifically to enforce this covenant against one seeking to erect a garage, is, under the case of Trustees of Columbia College v. Thacher ( 87 N.Y. 311), also a question which may be the subject of judicial determination. The general rule is that covenants of restrictions are enforcible by specific performance, and the burden rests upon the defendant in such an action to show a condition of the neighborhood which makes it inequitable to enforce them. This is a burden which a purchaser should not be compelled to assume.
I think the title is unmarketable.
JENKS, P.J., concurs.
Judgment affirmed, with costs.