Opinion
October 11, 1923.
Albert C. Aubery, for the appellants.
Raphael Blank [ Sidney S. Lesser with him on the brief], for the respondent.
The defendants' sole contention on the trial of this action was that the character of the neighborhood had so materially changed from what was intended at the time the restrictions were made that there was no violation of the same. This claim was found by the trial judge to be entirely without merit and an injunction was granted enjoining the erection of the building and ordering the removal of such portion of the same as had been erected upon the property. Upon the appeal before this court the defendants set up an entirely new theory, and now contend that the covenant in the original deeds was a personal one, instead of a covenant running with the land, and, therefore, it was not enforcible by any owner of the lots which the grantor had conveyed.
We think the evidence here discloses that when the corporation which originally owned the land divided the tract into lots according to a map, and filed this map with a declaration of restrictions, and thereafter sold lots according to the map and restrictions, it limited not only the construction of buildings but their maintenance. The violation of the restrictive covenant may, therefore, be restrained at the suit of one who owns property or for whose benefit the restriction was established, it being settled that where a uniform plan of improvement restricting the use to which each parcel of a tract can be put is adopted, and parcels are sold with reference thereto, mutual negative easements are created irrespective of the order of the conveyances. The clear intent of the parties, to be gathered from the restrictions, is that they were not at all personal to the original grantor, but rather were for the use of each and all subsequent purchasers who might purchase or derive title through or from them to any part of the land laid down on the map as filed. After the original grantor had disposed of its interest in the property no right remained in the grantor to destroy the effect of the restrictions. (See Gutting v. Eiermann, 165 App. Div. 916, and cases cited.)
The judgment should be affirmed, with costs.
KELLY, P.J., MANNING, YOUNG and KAPPER, JJ., concur; JAYCOX, J., dissents upon the ground that the covenant was personal, and did not run with the land; that the right to enforce the same was vested in the grantor only.
Judgment affirmed, with costs.