Opinion
October 10, 1955.
Present — Nolan, P.J., Wenzel, Schmidt, Beldock and Ughetta, JJ.
Submission of a controversy upon an agreed statement of facts pursuant to section 546 of the Civil Practice Act dismissed, without costs. Plaintiff seeks specific performance of a contract for the purchase by defendant of certain real property. The question sought to be presented is whether or not the property is restricted to residential use. The determination of that question depends upon whether there was a general plan or scheme to restrict the entire development to such use. The statement of facts, however, is not sufficient to enable the court to render judgment. It does not appear that the deeds to various other lots in the development referred to the development map, which contained a notation that "All houses" were "to be single family residential", nor does it appear that restrictions and conditions contained in those deeds were covenants running with the land. The court may not draw inferences of fact from the facts within the stipulated case, nor may it consider statements in the briefs. ( McGoldrick v. Bodkin, 140 App. Div. 196; Town of Putnam Valley v. Slutzky, 256 App. Div. 929.) Moreover, the map notation is inconclusive and ambiguous and the entire issue, in our opinion, should be decided in an action rather than in this form of proceeding. (Cf. Marx v. Brogan, 188 N.Y. 431, 433, and Cerf v. Diener, 210 N.Y. 156.) Under the circumstances, the submission should be dismissed. ( Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302; Stephan, Inc., v. Bank of United States, 236 App. Div. 280; Town of Putnam Valley v. Slutzky, supra.)