Opinion
May, 1931.
Present — Lazansky, P.J., Kapper, Carswell, Scudder and Davis, JJ.
Judgment modified by striking out the words "and fill or cause to be filled up with sand, dirt, gravel or other suitable material the hole or excavation now on said land, so that the same shall be substantially as it was before the said excavation was commenced," and as so modified unanimously affirmed, without costs. We are of opinion that the stipulation at folio 124 (see, also, defendant's interpretation of the stipulation at folio 212) justified the trial court in applying his view of the premises in reaching a determination. ( Braisted v. Brooklyn R.B.R.R. Co., 46 App. Div. 204, 205.) We are also of opinion that the language of the restrictive covenant prohibiting the use of the premises "for carrying on any other noxious, dangerous, or offensive business, or trade," is sufficiently broad to support the judgment. The business carried on by the defendant is "noxious" and "offensive" "in the same manner that the prohibited trades are," namely, those specifically enumerated in the covenant. (See Moubray v. G. M. Improvement Co., 178 App. Div. 737, 739.) Conclusion of law numbered "Third" is modified in accordance with the modification of the judgment above directed.