Opinion
May, 1927.
Present — Kelly, P.J., Young, Kapper, Lazansky and Hagarty, JJ. Settle judgment on notice before Mr. Justice Lazansky.
Judgment unanimously directed for defendants on submission of controversy, without costs. While the restrictive covenant is not definite in its terms, the language used and the circumstances show that it was intended to run with the land and to limit the erection of buildings to within the same distance from the building line as the other properties on the same side of the street and the same block, which were set back about twenty-five feet. The restrictive covenant was for the benefit of the land and dwelling houses thereon retained by Wheeler. He and his assigns may enforce it against the grantees of the property burdened with it. ( Korn v. Campbell, 192 N.Y. 490.) In any event, the situation shows that if the defendants were compelled to take title, they would probably be involved in a lawsuit, and, therefore, should not be compelled to take title.