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“And the said party of the second part, for himself, his heirs, executors, and administrators, and assigns, doth hereby covenant, promise, and agree to and with the said parties of the first part, their successors and assigns, that neither he, nor any of his heirs or assigns, shall at any future time or times erect or build, or permit or cause to be erected or built, any stable, factory, machine shop, brewery, distillery, slaughterhouse, carpenter's or smith's shop, or structure or erection for the purpose of any kind of manufaoturing, or for any trade, business, or employment which shall be dangerous or noxious, or constitute a nuisance upon any part of the above-described premises; and the said party of the second part, for himself, his heirs, executors, administrators, and assigns, doth hereby further covenant, promise, and agree to and with the parties of the first part, their successors and assigns, that no building or buildings other than first-class stone or brick front dwelling houses or French apartment houses, shall be erected upon any part of the above-described premises; it being understood and agreed that the foregoing covenants on the part of the party of the second part shall run with the land, and bind all successive owners and their heirs and assigns."

The trustees thereafter conveyed all the rest of the block to said Page, and the westerly half of the block was likewise, in accordance with the terms of said contract, restricted by the same covenant as is found in the above-mentioned deed from said trustees to Villard. By deed dated December 2, 1881, Page conveyed to Villard two lots, each 25 feet in width, on the northerly side of Fiftieth street, beginning 150 feet easterly from the point formed by the intersection of the northerly line of Fiftieth street and the easterly line of Madison avenue. By deed dated June 23, 1881, Page conveyed to Henry Villard two lots, beginning at a point on the northerly line of Fiftieth street, distant 125 feet easterly from the northeasterly corner of Madison avenue and Fiftieth street; running thence northerly, and parallel with Madison avenue, to the southerly line of Fifty-First street, being 25 feet in front on Fiftieth street, and 25 feet in front on Fifty-First street, and about 200 feet and 10 inches in depth. By deed dated October 21, 1881, Page conveyed to Artemus H. Holmes two lots, beginning 175 feet easterly from the northeasterly corner formed by the intersection of the easterly line of Madison avenue and Fiftieth street, running through to the southerly side of Fifty-First street, and being 25 feet in width on each street. The foregoing deeds from Page to Villard and to Holmes were all made subject to the restrictions and covenants expressed in the deed from the trustees of St. Patrick's Cathedral to J. Augustus Page, dated April 15, 1881, and recorded in the office of the register of the city and county of New York, in Liber 1586 of Conveyances, p. 413. By deed dated January 10, 1882, Page conveyed to Robert Goelet and Ogden Goelet the two lots of land on the southerly side of Fifty-First street, beginning 200 feet easterly of Madison avenue, each lot being 25 feet in width in front by 100 feet and 5 inches in depth on each side. This deed contained the following covenant, viz.:

“The said parties of the second part, for themselves, their heirs, executors, and administrators, and assigns, do hereby covenant, promise, and agree to and with the said parties of the first part, their heirs and assigns, that neither they, nor any of their heirs or assigns, shall at any future time or times erect or build, or permit or cause to be erected or built, any stable, machine shop, brewery, distillery, slaughterhouse, or smith's shop, upon said prem

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ises; it being understood and agreed that the foregoing covenants on the part of the parties of the second part shall run with the land, and bind all successive owners thereof, and their heirs and assigns."

By deed dated December 16, 1882, Page conveyed to Rosanna Spaulding two lots on the north side of Fiftieth street, beginning 200 feet easterly of Madison avenue, each 25 feet in width and 100 feet in depth. By deed dated March 1, 1883, Page conveyed to Abraham Benson all the rest of the block conveyed to him by the trustees, consisting of the entire front on Fourth avenue, and 150 feet in depth on each street. The deeds from Page to Spaulding and from Page to Benson both contain the same covenant that is found in the deed from Page to Goelet of January 10, 1882. After the deed from Page to Spaulding was made, two apartment houses were erected on the land therein described, and, by sundry mesne conveyances, the plaintiff, thereafter and on August 3, 1891, became the owner thereof. By deed dated February 21, 1884, one Robert C. Hine became the owner of the Fourth avenue front theretofore conveyed by Page to Abraham Benson, and, Page (Benson's grantor) having died, a release was obtained by Hine from the widow and sole legatee and devisee of Page, as to the covenant against nuisances found in the deed from Page to Benson. Thereafter the defendant, by sundry mesne conveyances, became the owner of the land on Fourth avenue, and in none of the subsequent conveyances was any reference made to the covenant found in the deed from Page to Benson. In the beginning of the month of May, 1892, the defendant filed plans in the department of buildings in the city of New York for the erection of six buildings thereon, to be used as private stables; three of them to front on Fiftieth street, and three to front on Fifty-First street, and each to be 25 feet in width. This action was brought by the plaintiff to restrain the use by the defendant of this property as stables, for the reason, as it claims. that such use is in violation of the covenant contained in the deed from Page to Benson. The notice of pendency of action was filed in the county clerk's office in and for the city and county of New York on June 22, 1892, and this action was commenced on or about that day.

The plaintiff claims that it has a right in equity to enforce the covenant found in the deed from Page to Benson, and that the release from Page's widow and sole legatee and devisee to Hine (Benson's successor in title) was wholly inoperative, for the reason that such covenant was not alone for the benefit of Page, but likewise for the benefit of Page's other grantees in the block. of whom the plaintiff's predecessor in title, Spaulding, was one. The plaintiff also claims that its grantor, Spaulding, took title in reliance upon an agreement, supported by a sufficient consideration, made by Page with Spaulding, that Page would restrict all the rest of the property owned by him in the block. The defendant insists that the covenant found in the deed from Page to Benson was solely for the benefit of Page, and that no adjoining owner can enforce it; that, therefore, Page's widow and sole legatee and devisee had an absolute right to release it, and that the release

was effectual. The defendant also claims that he took without any notice of any agreement or understanding between Page and Spaulding, and that such agreement or understanding, if any, cannot be enforced against him. The defendant also claims that there has been such a change in the use of the land on Fourth avenue as to render it inequitable, assuming the original covenants in the deeds to be still effectual, to enforce them.

The first question for determination in the case is whether the covenant against nuisances in the deed from Page to Benson was made for the benefit of the prior purchasers from Page of the adjoining lots, and therefore created an equitable easement over the lots conveyed to Benson. After a careful consideration of all the authorities cited by counsel, and many more that have been examined, it must be held that the covenant in the deed to Benson was intended to protect prior purchasers from Page of adjoining lots. At the time of the conveyance to Benson, Page had conveyed all the other portions of the block which he had owned. The conveyance to Benson was on March 1, 1883, and embraced 12 lots of land, and covers all the land Page then owned in the block, and he conveyed it with the same restrictive covenants that he had put in the prior deeds to the Goelets and to Spaulding; Page had no longer any interest in any of the land, as such, in the block. He no longer owned any of the property in the block that could be injured by any breach of the covenant. The covenant in the deed to Benson must therefore have been intended by Page for the protection of the prior vendees of lots in the block. In each deed of the easterly half of the block, Page had inserted a covenant against nuisances, and, when he parted with his last lot in the easterly half, he put in the same covenants. These facts conclusively show an intention on Page's part to establish a uniform plan of restriction as to the entire easterly half of this block.

In Post v. Weil, 115 N. Y. 361, 22 N. E. Rep. 145, in which there arose a question as to the distinction between a condition and a covenant in a deed, Mr. Justice Gray, speaking for the court of ap peals, says:

"I think we all will agree that the presumption here, as in every other case where a restriction is inserted in a deed against undesirable structures or trades, is that the insertion was for the purpose of protecting rights which the grantor had in adjacent property."

In Trustees v. Lynch, 70 N. Y. 440, at page 447, Mr. Justice

Allen says:

"An easement in favor of and for the benefit of lands owned by third per. sons can be created by grant, and a covenant by the owner, upon a good consideration, to use, or to refrain from using, his premises in a particular manner, for the benefit of premises owned by the covenantor, is, in effect, the grant of an easement, and the right to the enjoyment of it will pass as appurtenant to the premises in respect of which it was created. Reciprocal easements of this character may be created upon the division and conveyances in severalty to different grantees of an entire tract, and they may be created by a reservation in a conveyance, by a condition annexed to a grant, or by a covenant, and even a parol agreement of the grantees. Curtiss v. Ayrault, 47 N. Y. 73; Tallmadge v. Bank, 26 N. Y. 105; Gibert v. Peteler, 38

Barl). 188, affirmed 38 N. Y. 165. The right sought to be enforced here is an casement, or, as it is sometimes called, an 'amenity,' and consists in restraining the owner from doing that with and upon his property which, but for the grant or covenant, he might lawfully have done, and hence is called a 'negative easement,' as distinguished from that class of easements which compels the owner to suffer something to be done upon his property by an. other. Washb. Easem. 5. Easements of all kinds may be created and exist in favor of any third person, irrespective of any privity of estate or community of interest between the parties; and in this respect there is no distinction between 'negative easements' and those rights that are more generally known as 'easements,' as a way," etc.

At page 449 the same learned judge says: "An owner may subject his lands to any servitude, and transmit them to others charged with the same; and one taking title to lands, with notice of any equity attached thereto, or any outstanding right or claim affecting the title or the use and enjoynient of the lands, takes subject to such equities, and such right or claim, and stands, in the place of his grantor, bound to do or forbear to do whatever he would have been bound to do or forbear to do. Lord Cottenham uses this language: 'If an equity is attached to property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased.' Tulk v. Moxhay, 2 Phil. Ch. 774. In the case cited, a covenant between grantor and grantee, in respect to the use of the granted premises, was enforced against subsequent grantees thereof, with notice. The rule is of universal application, as stated by Lord Cottenham. Tallmadge v. Bank, supra; Story, Eq. Jur. $8 395, 397. Here each successive grantee from Beers, the covenantor, down to and including the defendant Lynch, the present owner, not only had notice of the covenant, and all equities growing out of the same, but took their title in terms subject to it, and impliedly agreeing to observe it. It would be unreasonable and unconscientious to hold the grantees absolved from the covenant in equity for the technical reason assigned, -that it did not run with the land, so as to give an action at law. A distinguished judge answered a like objection in a similar case by saying, in substance, that, if an action at law could not be maintained, that was an additional reason for entertaining jurisdiction in equity, and preventing injustice. The action can be maintained for the establishment and enforcement of a negative easement created by the deed of the original proprietor, affecting the use of the premises now owned and occupied by the defendants, of which they had notice, and subject to which they took title. There is no equity or reason for making a servitude of the character of that claimed by the plaintiffs in the lands of the defendants an exception to the general rule which charges lands in the hands of a purchaser with notice with all existing equities, easements, and servitudes. The rule and its application do not depend upon the character or classification of the equities claimed, but upon the position and equitab'e obligation of the purchaser. The language of courts and of judges has beeli very uniform and very decided upon this subject, and all agree that whoever purchases lands upon which the owner has imposed an easement of any kind, or created a charge which would be enforced in equity against him, takes the title subject to all easements, equities, and charges, however created, of which he has notice. Parker v. Nightingale, 6 Allen, 341; Catt v. Tourle. 4 Ch. App. 654; Carter v. Williams, 18 Wkly. Rep. 5.3, before Vice Chancellor James; Wolfe v. Frost, 4 Sandf. Ch. 72; Tulk v. Moxhay, supra; Whitney V. Railroad Co., 11 Gray, 359; Gibert v. Peteler, supra; Barrow v. Richard. 8 Paige, 351; Greene v. Creighton, 7 R. I. 1; Brouwer v. Jones, 23 Barb. 153."

The leading case in this state, which has been frequently cited by our own and other courts, is that of Barrow v. Richard, 8 Paige, 351, (reported in 3 Edw. Ch. 96, as Barron v. Richard.) In this case the covenant was as follows:

"Provided, however, and this indenture and the estate bereby granted are declared to be on this express condition, that there shall, at no time, be

erected, made, carried on, permitted, or suffered upon any part of tie hereby granted premises any livery stable, slaughterhouse, tallow chim l'ery smith's shop, forge, furnace, brass or other foundry, nail or other iron fils tory, or any manufactory for the making of glue, varnish, vitriol, ink, or turpentine, nor for the dressing or keeping skins or hides, or any distillery or brawery, nor any other manufactory, trade, or business whatsoever which shall or may be in any wise offensive to the neighboring inhabitants; and, in default whereof, this indenture, and every clause, article, or thing herein contained, shall become void to all intents and purposes." See 3 Edw. Ch. 97.

In Brouwer v. Jones, 23 Barb. 153, there was a covenant similar in form to that found in Barrow v. Richard, and Judge Emott, delivering the opinion of the court, at page 162, says:

"The object of the covenants inserted in the deeds o, all the lots included in the tract of which the lots both of the plaintiffs and defendants are a part vas to protect the whole tract, and every lot belonging to it, whether in the hands of the original owners or of any subsequent grantees, from nuisances or offensive and injurious erections or occupations. Every conveyance from Brouwer & Mason contained such a covenant, and every lot conveyed by them had an easement in every other lot to forbid or restrain its use or oscupation in any offensive way; and therefore I am unable to see in what respect the relative dates of the conveyances to the grantees of Brouwer & Mason can make any difference. Every such covenant, in every deed given by them, was intended not only for their benefit, but also for that of all their prior, as well as subsequent, grantees, and created this easement in behalf of the whole property. This court may therefore very properly be asked to interpose in behalf of any of the owners of the lots, as being parties for whose benefit the covenants were made. The reasoning and the conclusions of Vice Chancellor McCoun and Chancellor Walworth, in the case of Barrow v. Richard, are perfectly satisfactory to me. I cannot distinguish the present case from that, taking the most favorable view of the facts here for the defendant; and I am not at all disposed to overrule so wise, well-considered, and beneficial a principle of equity as that which is asserted in these and similar cases, in the courts of this country."

These cases have been followed by many in our courts, but it is earnestly contended on behalf of the defendant that they are all to be distinguished, for the reason that in the covenants which have been before the courts for construction in such cases the words "neighboring inhabitants" are found, which are not in the covenant now under consideration, and that a different rule is therefore to be applied. It is impossible to see upon what principle the insertion of the words "neighboring inhabitants" can change the rule, for it is clear that those words do not create in such neighboring inhabitants any right of action, and that they qualify only the character of the nuisances which are forbidden. In other words, the words “neighboring inhabitants” are inserted to show that not alone are the nuisances which are expressly named prohibited, but all others which shall be injurious to such neighboring inhabitants. This view is fully sustained by the recent case of Raynor v. Lyon, 46 Hun, 227. That action was brought for the specific performance of a contract made by the plaintiff with the defendant for the sale and purchase of two lots of land on the southerly side of 143d street, in this city. By the contract the plaintiff agreed to deliver to the defendant a deed of the premises in fee simple, free from all incumbrances. The defendanı resisted the performance of the agreement, upon the ground that the

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