Opinion
June, 1930.
Order denying motion of defendant Russell Gardens, Inc., for judgment on the pleadings reversed upon the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The covenant referred to by the words "shall not be sold except upon and with the foregoing covenant and condition as last above described," refers to the last clause of the covenant mentioned in paragraph 6 of the amended complaint with reference to highways, avenues, streets or lanes. Young, Kapper, Scudder and Tompkins, JJ., concur; Lazansky, P.J., dissents upon the ground that the words above quoted refer to the entire covenant mentioned in paragraph 6 of the amended complaint, and that in any event there may be an ambiguity requiring a trial of the action.