Opinion
November 23, 1970
Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered August 14, 1969 in Tompkins County, upon a decision of the court at a Trial Term, without a jury. Plaintiffs, Leon B. Hardesty and Virginia Hardesty, developed a housing subdivision in the Town of Dryden, known as the Knoll Tree subdivision, and all of the parties hereto are owners of lots in this subdivision. All of the deeds to the respective lots contain the same restrictive covenants and, in particular, the following covenants: "a. The property shall be used only as a residence property. * * * f. Only a dwelling house, and for not more than two families, shall be built on the above-described premises, together with appurtenant buildings. The appearance of a one-family dwelling shall be maintained." The defendants own two houses situate on two of the lots, and admittedly these houses were constructed in conformance with the restrictive covenants. The complaint alleges, and the uncontradicted evidence indicates, that defendants had leased each of their houses to eight or more unrelated persons, apparently college students. One of the plaintiffs, owner of a lot adjoining one of the defendants' houses, testified that the occupancy of the buildings was of a transient character, and estimated that as many as 64 different students occupied the buildings in a year's time. There is also evidence that from 5 to 10 automobiles were commonly parked at each building resulting in traffic congestion and excessive noise. Plaintiffs, alleging that the use of defendants' houses by eight or more unrelated persons was a violation of the restrictive covenants, brought this action for a permanent injunction restraining and enjoining such use. The trial court found in plaintiffs' favor and issued the injunction. On this appeal defendants first contend that the court's decision is based on conclusions which the record does not factually support. In this regard, while the record contains no documentary evidence to establish as a positive fact that the persons occupying the houses owned by defendants were unrelated, there is sufficient evidence as to the nature of the occupancy to substantiate and justify the conclusion that the premises were, in fact, occupied by a number of unrelated persons, they being college students. Further, defendants offered no evidence to establish that the occupants were, in fact, related and were other than college students. Defendants next contend that they have complied with the restrictive covenants in that paragraph a of the restrictions permits residential use, and paragraph f merely limits the type of structure which might be constructed upon the lots. "A covenant is simply a contract of a special nature, and the primary rule for the interpretation thereof is to gather the intention of the parties from their words, by reading not simply a single clause of the agreement, but the entire context and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered when their minds met." ( Clark v. Devoe, 124 N.Y. 120.) A covenant requiring that a building shall be of a certain type of construction applies to the use thereof as well as to the construction. ( Baumert v. Malkin, 235 N.Y. 115.) Applying the rule in Clark v. Devoe ( supra), the two covenants in question must be read together to ascertain their meaning. In so doing, it is clear that there is no ambiguity in their meaning. The first covenant limits use to residential purposes, and the second further qualifies or limits the extent of the permitted use in the first covenant to use by not more than two families. Thus, while the structures erected on defendants' lots conform as to construction, any use thereof by other than one or two families would be violative of the covenant. Considering the ordinary and commonly accepted meaning of the words "for not more than two families", in the light of the obvious objectives of the developer in imposing the restrictive covenants, a group of eight or more students unrelated by blood and coming from widely separated areas cannot be considered as constituting a family within the meaning of the covenant. Such a construction would be unrealistic and without merit. (Cf. City of Schenectady v. Alumni Assn. of Union Chapter, Delta Chi Fraternity, 5 A.D.2d 14.) Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Sweeney, JJ., concur.