Opinion
December 17, 1915.
Stanley Holcomb Molleson, for the appellant.
John C. Judge [ Samuel Sprung with him on the brief], for the respondent.
Plaintiff sought to restrain defendant from maintaining a building erected by her as a garage upon her property in Belle Harbor, in the borough of Queens, maintaining that it was against a restrictive covenant in the conveyance of the property. This deed from the West Rockaway Land Company declared that the conveyed premises should be used and occupied solely for residential purposes, and that no other buildings should be erected thereon. It continued:
"Subject, however, to the following covenants and restrictions which shall be taken to be real covenants running with the land and binding upon the party of the second part, his heirs, executors, administrators and assigns for a term of twenty years from the 1st day of January, 1906, viz.:
"That neither the said vendee nor his heirs, assigns or undertenants shall or will erect or suffer or permit to be erected on any part of said land hereby conveyed any public bathing house, slaughter house, blacksmith shop, forge, foundry or furnace, or any factory of any kind or nature whatsoever, or tannery or other factory for the manufacture, preparation or treatment of skins, hides or leather, or any brewery, malt house or distillery, or any building, booth, or other structure for the manufacture or sale of any malt or spirituous or distilled liquors or drinks of any description, or to be used as a livery stable, or for the carrying on of any noxious, dangerous or offensive trade or business, or any building of the character or description known as a tenement house, hotel or boarding house, or any barn or stable whatsoever, or for the giving of shows or public entertainments of any kind, and that he or they will not give or permit to be given upon said land any shows, concerts, theatrical or musical performances, or any entertainment whatever of a public character, whether accompanied by music or not which attracts or is calculated to attract, divert or collect a congregation of persons, and that neither he nor they shall or will use or suffer or permit to be used, erected or commenced any building or structure erected or to be erected on said premises for any of the above mentioned and prohibited purposes, businesses or uses, nor for any hospital, cemetery, asylum, manufactory, trade, shop, store, hotel, clubhouse, boarding house, stable or garage."
There was also a "set back" covenant prescribing that buildings shall not extend beyond fifteen feet from the street lines in front and in rear; also regarding the minimum cost of any dwelling house to be so erected, none of which should be directly connected with any building on any adjoining lot.
Defendant has put up a lean-to about ten feet wide, fifteen feet deep and eight feet high against her private dwelling, two sides of which form two sides of this attached structure. In it she now stores and houses her own automobile only.
Plaintiff contends that this structure is a garage within the above covenant.
While the courts carry out and enforce such covenants restricting the enjoyment of land such restrictions are not to be enlarged or extended by judicial construction. (11 Cyc. 1078.) The present structure, painted to conform to the house to which it is attached, is simply an addition to the dwelling. While used to house a motor car it might serve as a storeroom or for other needs of a private dwelling.
In Beckwith v. Pirung ( 134 App. Div. 608), a like structure, being also a small addition to a dwelling house, in which the owner kept his automobile, was held not to impair the private residential character of the property. There is a clear distinction between a private and a public garage, the latter being often offensive in the neighborhood of dwellings. ( Evans v. Foss, 194 Mass. 513.)
It is a familiar principle that separate terms in the enumeration of things and uses prohibited or limited by such restrictions are to be taken subject to the general qualifying words expressive of the scope and purpose of the covenant as a whole. (Berry Restrictions Real Prop. § 41.) This entire covenant is directed against offensive trades and further toward quasi-public uses, such as trade or business, which would detract from the private residential character of the occupation. Under the ejusdem generis rule the latter portion of the covenant against buildings or structures "for any hospital, cemetery, asylum, manufactory, trade, shop, store, hotel, clubhouse, boarding house, stable or garage," does not apply to this structure attached to defendant's residence, in which is kept her private motor car.
I advise that the judgment of dismissal be affirmed, with costs.
JENKS, P.J., THOMAS, CARR and RICH, JJ., concurred.
Judgment affirmed, with costs.