Opinion
January 27, 1941.
In an action to enforce an alleged restrictive covenant concerning real property, defendant appeals from an order (a) granting plaintiff's motion for a temporary injunction, and (b) denying defendant's cross-motion to dismiss the complaint for insufficiency. Order reversed on the law, with ten dollars costs and disbursements, plaintiff's motion denied, without costs, and defendant's cross-motion to dismiss the complaint granted, without costs. A private garage of today is not a stable within the purview of a restrictive covenant executed in 1856. ( Goldstein v. Hirsh, 108 Misc. 294; affd., sub nom. Goldstein v. Rosenberg, 191 App. Div. 492; affd., 232 N.Y. 535.) Perpall v. Gload ( 116 Misc. 571; affd., 203 App. Div. 871), on which plaintiff relies, in so far as it may be in conflict with the Goldstein case ( supra), should not be followed. Lazansky, P.J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.