Defendants further claim that the court erred in finding any actual misrepresentation in the facts as set forth in the contract of sale, in that the representations were true as far as they went, and that as to any facts which might appear concerning the purport of the mortgage notes not included in the representations, the burden was upon the plaintiffs to make inquiry and the doctrine of caveat emptor applies, "unless these clauses tend to vary the terms as described in the agreement." The case principally relied on by defendants is that of Feltenstein v. Ernst, 97 N.Y.S. 376, followed and approved in Feist v. Block, 115 N.Y. App. Div. 211, 100 N.Y.S. 843, and in Baucher v. Stewart, 136 N.Y. App. Div. 844, 122 N.Y.S. 202, also cited by defendants. In the case first cited, the court held that "all the seller is required to do is to correctly describe the incumbrance so far as he attempts to describe it at all.

We are further of opinion that under the "subject clause" of the contract the "one hundred feet restriction" was a limitation of the "use of the * * * premises" to (or for) "residential purposes," subject to which respondent was obliged to take title, and that, in the absence of any express representation that the restrictive covenants contained in the recorded deeds, specifically mentioned and referred to in the contract, did not restrict the number of buildings which might be erected upon a plot of a particular size, respondent was chargeable with notice of the limitation contained in the covenants and restrictions in those deeds. ( Schnitzer v. Bernstein, 119 App. Div. 47; Feltenstein v. Ernst, 49 Misc. 262; affd., 113 App. Div. 903; Blanck v. Sadlier, 153 N.Y. 551; Moot v. Business Men's Investment Assn., 157 id. 201.) New findings consistent with this determination will be made. Rich, Young, Kapper and Hagarty, JJ., concur; Lazansky, P.J., dissents, being of opinion that the use by the parties of the words "so far as they limit the use of the above described premises to residential purposes" indicates an intent to exclude all restrictions except use for residential purposes.

It seems to me that the recording of the third mortgage must be held to have fully notified the plaintiff of its provisions. The case of Feltenstein v. Ernst ( 49 Misc. 262; affd., 113 App. Div. 903) seems to be directly in point. In that case the plaintiff sued to recover a deposit paid upon a contract for purchase of real property, upon learning that a recorded mortgage upon the property contained a clause providing for the contingency of the imposition by the Legislature of a specific tax on mortgages. At Trial Term the plaintiff had judgment, but the Appellate Term reversed. Mr. Justice SCOTT, writing for the Appellate Term, said (at p. 264): "It is not to be denied that there is a possibility under this clause that, without any act or default on the part of the mortgagors, or the owner of the land, the interest on the mortgage may be increased beyond five per cent or the due date may be advanced.