Opinion
December, 1927
Judgment modified so as to permit defendant to use the property in question in a manner consistent with the residential character of the neighborhood and for purposes not expressly prohibited by the covenants contained in defendant's proposed finding of fact numbered "sixth" and as found by the Special Term. As so modified, the judgment is affirmed, without costs. We are of opinion that the judgment is too narrow. We construe the first restrictive covenant as permitting defendant to store any merchandise building material which evidently was within the contemplation of the parties to the deed in the light of the facts and surrounding circumstances, and that if defendant purposed to conduct manufacturing on the premises he should be confined to manufacturing "millwork." This accords with the view taken by plaintiff's counsel at the close of the case, as we read his claim. We think the judgment should comport as nearly as practicable with the modified injunction and views expressed in Rowland v. Miller ( 139 N.Y. 93, 98, 102), and that such a construction will be in keeping with the language of the various restrictions which the deed in question contains. Lazansky, P.J., Rich, Kapper, Seeger and Carswell, JJ., concur. Settle order on notice.