Sidebilder
PDF
ePub

The Lowerre Summit Park Realty Company acquired title to the lots involved, and also to lots 6 to 10, inclusive, 27 to 34, inclusive, the easterly half of lot 36, lots 37 to 50, inclusive, lot F F, the northerly 25 feet of lot 33 of block A, and parts of blocks B, C, D, E, F, and G, as shown by and appearing upon said map. Said Lowerre Summit Park Realty Company, on November 15, 1912, executed a mortgage upon lots 1, 2, and 3, in block A, on said map, to one La Monte, which by various assignments became the property of Dudley R. Van Ness. This mortgage contained no covenants restricting the use of the mortgaged premises or the character of the buildings which might be erected thereon. By a deed dated April 10, 1913, said company conveyed said lots 1, 2, and 3 to Theodore R. Van Ness, subject to said mortgage and subject to the following restrictions:

"(a) No more than one house shall be erected on plot 37 feet front by 100 feet in depth; such house shall be for two families, not less than two stories in height, nor without cellar, nor with roof known as flat roof, and shall not cost less than $6,000; or one house on plot 25 feet by 100 feet in depth for one family, not less than two stories in height, nor without cellar, nor with roof known as flat roof and shall not cost less than $5,000. No other building shall be erected on said premises, except a private garage.

"(b) No building shall be erected thereon until its exterior plans have been approved by the said company.

"(c) No intoxicating liquors shall be manufactured or sold, no stores erected or maintained, no manufacturing of any kind carried on, and no hogs, goats, geese, chickens, or ducks kept upon said premises.

"(d) No fence or building shall be erected within 20 feet of the front line, nor building within 2 feet of the side lines of said premises, nor fence over 4 feet high, nor garage within 60 feet of any street line.

"This restriction shall not apply to steps, piazza, or bay windows upon houses so erected.

"These restrictions shall be binding upon the land and any owners thereof until January 1, 1930."

At the time of this conveyance, the grantor had sold 31 full and 2 one-half lots in block A, and was the owner of the remaining 30 full and 2 one-half lots in said block. The title to said lots 1, 2, and 3 in block A, by sundry conveyances, each stating that the premises conveyed were subject to said mortgage and said restrictions, vested in Charles W. Boote as trustee on July 24, 1914. On May 25, 1916, Dudley R. Van Ness commenced an action in the Supreme Court to foreclose the said mortgage. The Lowerre Summit Park Realty Company, said Boote, as trustee, and other parties having a specific interest in or lien upon the mortgaged premises, were made defendants. The owners and mortgagees of the lots owned by said company at the time of its conveyance to Theodore R. Van Ness were not made parties. Judgment of foreclosure and sale was rendered, under which the lots were sold and conveyed on August 15th to "Van Ness Bros., Incorporated," a domestic corporation; the referee's deed containing no reference to said restrictions. On October 2, 1916, said corporation conveyed said lots to the defendant by a full-covenant warranty deed, purporting to convey them free and clear of all incumbrances.

Prior to the filing of the notice of pendency in the foreclosure action, the Lowerre Summit Park Realty Company had sold and conveyed all the lots in said block A; the deeds to 9% of said lots contain

ing covenants and restrictions substantially the same as those contained in the deed to Theodore R. Van Ness, and the deeds of the remaining 2012 lots contained no restrictions. The restricted lots are all in the extreme north end of block A-4, fronting on Park Hill avenue; 12 on Marshall road, and 4 on Madeleine parkway. The restricted lot nearest defendant's lots is lot 27, which is about 750 feet distant therefrom. Between restricted lots 27 and 28, and restricted lots 33 and 34, fronting on Park Hill avenue, are lots 29, 30, 31, and 32, unrestricted; and between restricted lot 37, fronting on Marshall road, and restricted lot 39, fronting on Madeleine parkway, is lot No. 38, unrestricted. Lot 51, fronting on Lewis parkway, and abutting on the rear defendant's lot 3, lots 6, 7, 8, 9, and 10, which are the fifth, sixth, seventh, eighth, and ninth lots north of defendant's lot, and 91⁄2 lots fronting on Lattin drive, much nearer defendant's premises than the nearest restricted lot, are all without restriction.

[1-3] The plaintiff contends that the restrictive covenants contained in the deed to Theodore R. Van Ness were imposed for the benefit of all the lots in block A, owned by the corporation grantor at the time such deed was given, and enforceable by the owner of such lots at any time thereafter. That the rights were not extinguished by the foreclosure judgment, because the owners of the lots were not made parties to the action, is the basis for the argument that the title tendered by the defendant was not free and clear from all incumbrances. He contends that the defendant cannot perform his contract of sale, and that he should have judgment for the moneys advanced by him on the execution of the contract, together with his expenses for examining the title. I think that this contention is without merit. The restrictions contained in the Van Ness deed are clearly personal, and not enforceable by the owner of any of the lots acquiring title after the deed was given. There is no corresponding covenant by the grantor; there is no mutual agreement or undertaking between the several lot owners creating an easement, and nothing disclosed from which mutual rights are fairly inferable. Of all the lots conveyed by the Lowerre Summit Park Realty Company (located in block A) after the conveyance to Van Ness, the deeds to but 9 full and 1 half lot contain restrictions, and they are a long distance from defendant's lots, while the lots in the vicinity of defendant's are unrestricted. This, I think, repels any presumption of a general scheme created for the benefit of all the lots. No uniform restrictions or uniform plan of improvement are shown, and no lot owner is in a position to raise a question based on a breach of covenant by defendant or his predecessors in title; the rights of the corporation having been extinguished by the judgment in the foreclosure action. Clark v. Devoe, 124 N. Y. 120, 124, 26 N. E. 275, 21 Am. St. Rep. 652; Equitable Life Assurance Society v. Brennan, 148 N. Y. 661, 43 N. E. 173; Silberman v. Uhrlaub, 116 App. Div. 869, 102 N. Y. Supp. 299; Davidson v. Dunham, 159 App. Div. 207, 209, 144 N. Y. Supp. 489; Schermerhorn v. Bedell, 163 App. Div. 445, 148 N. Y. Supp. 896; Barney v. Everard, 32 Misc. Rep. 648, 67 N. Y. Supp. 535; Schwoeerer v. Leo, 39 Misc. Rep. 505, 80 N. Y. Supp. 399; Dime Savings Bank v. Butler, 96 Misc. Rep. 82, 160 N. Y. Supp. 954.

The authorities cited by the plaintiff to sustain his contention are distinguishable from the case presented by this record. In those cases the covenants involved were mutual. There is no defect in defendant's title to the premises he contracted to convey to the plaintiff that affects its marketability or constitutes a cloud thereon, and the defendant is entitled to judgment in accordance with the twenty-first subdivision of the stipulation, without costs. All concur.

(102 Misc. Rep. 114)

KARG v. SEVENTY-NINTH ST. GARAGE CORP.

(Supreme Court, Appellate Term, Second Department, December Term, 1917.) EXPLOSIVES 7-INJURIES FROM EXPLOSIONS-LIABILITY.

An ordinance, the title of which indicated that it was enacted to regulate the use of explosives and hazardous trades, contained an article referring to garages, in which was a section entitled "Supplying Vehicles,” and providing that no person should deliver volatile inflammable oil from a storage tank to a motor vehicle, except by means of an approved portable tank, or through the outlet of a drawing-off pipe by means of an authorized hose attachment, and that all lights on motor vehicles, except electric lights, should be extinguished before volatile inflammable oil was delivered to fuel tanks. Held, that the duty of extinguishing the lights on a motorcycle before delivering gasoline to its tank was imposed on the party making the delivery, and where a garage keeper was pumping gasoline into such tank through a hose, which was held by the motorcycle owner, when the tank overflowed and caused an explosion, the negligence in failing to extinguish the lights was that of the garage keeper, and not that of the motorcycle owner.

Appeal from Municipal Court, Borough of Brooklyn, Fifth District. Action by Ernest Karg against the Seventy-Ninth Street Garage Corporation. From a judgment entered upon a verdict of a jury in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Argued December term, 1917, before CALLAHAN, CLARK, and BENEDICT, JJ.

Howard C. De Silva, of Arena, for appellant.

George Meyer, of New York City, for respondent.

CALLAGHAN, J. This action was brought to recover damages for personal injuries alleged to have been suffered as a result of the defendant's negligence. The facts are simple. Defendant owned and controlled a garage on Seventy-Ninth street, Brooklyn. Plaintiff owned a motorcycle, equipped with oil-burning lamps. On the night in question, he was riding the motorcycle, the lamps of which were lighted. When in the vicinity of defendant's garage, the gasoline gave out. Plaintiff pushed the motorcycle by hand into the garage and ordered one gallon of gasoline. The gasoline tank on the vehicle held but one gallon and a half. Neither light, on the front or rear of the motorcycle, was extinguished. The rear light was about 12 inches from the tank. The gasoline was supplied from a large tank, and was pumped.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

therefrom, through a hose, into the tank of the motorcycle. Defendant's servant, controlling the supply of gasoline from a distance of 16 feet, pumped the gasoline, while the plaintiff held the nozzle of the hose into the tank of the motorcycle. Instead of delivering one gallon of gasoline, as directed, defendant's employé pumped two gallons, and as a result the tank of the motorcycle overflowed. The gasoline went in all directions. Some of it came in contact with the lamp on the rear of the vehicle, the fumes became ignited, and there was a violent explosion, resulting in severe burns to plaintiff's hands.

The answer was amended upon the trial to allege negligence, based upon a violation of section 157 of the Code of Ordinances of the City of New York. The question of defendant's negligence and plaintiff's freedom from contributory negligence can be determined from that ordinance. If the duty of extinguishing the lights was placed upon the owner of the motorcycle, it is manifest that there can be no recovery in this action. If, on the other hand, the ordinance placed the responsibility upon the defendant to see that all lights were extinguished before gasoline was delivered to motor vehicles, then there is sufficient evidence to sustain the finding of the jury that the defendant was negligent and that the plaintiff was free from contributory negligence. That ordinance is as follows:

"Section 157. Supplying Vehicles.-I. Method. No person shall deliver volatile inflammable oil from a storage tank to a motor vehicle, except by means of an approved portable tank, or directly through the outlet of the drawing-off pipe by means of an authorized hose attachment. All lights on motor vehicles except electric lights shall be extinguished before volatile inflammable oil is delivered to fuel tanks."

A reading of this ordinance, in connection with the title of the chapter in which it is found, leads one inevitably to the conclusion that the ordinance intended to place upon the garage keeper the duty of extinguishing the lights before delivering the gasoline into the tank of the motor vehicle. The title of the ordinance indicates that it was enacted to regulate the use of "explosives and hazardous trades." It can hardly be argued that the ordinance attempted to regulate the use of gasoline in a motorcycle as a hazardous trade, particularly as article. 11 of the ordinance refers to "garages," while section 157 (the one in question) is entitled "Supplying Vehicles," and reads in part as follows: "No person shall deliver"-meaning, apparently, in view of the fact that it is only the seller, the garage keeper, who delivers the gasoline, that he is the one, the seller, to whom the ordinance refers. "Deliver" could hardly refer, by any stretch of imagination, to the motorcyclist. The ordinance directs that all lights of motor vehicles shall be extinguished before gasoline is delivered. It was, no doubt, the intention of the makers of this ordinance that it should refer to the person who makes the delivery of the gasoline. The simplest rule of syntax seems to me to require that the last part of the section be construed as referring to the person who is charged with some duty; i. e., the delivery of "volatile inflammable oil," as set out in the first part of the section.

The ordinance, therefore, placed the responsibility of extinguishing the lights, before gasoline was delivered to a motor vehicle, upon the garage keeper, and the failure of this defendant to comply with that ordinance furnishes sufficient grounds for holding it liable for negligence causing the explosion, and, as a consequence, justifies a finding that the plaintiff was free from negligence which contributed toward the accident.

It follows, therefore, that the judgment should be affirmed, with

costs.

CLARK and BENEDICT, JJ., concur.

MORSS v. ALLIN et al.

(Supreme Court, Appellate Division, First Department. December 31, 1917.) 1. WILLS 653-CONDITIONS AND RESTRICTIONS-VALIDITY.

A will, after giving the testator's wife one-third of the income from his estate for life, contained a bequest and devise of all of the real and personal property to a son, and appointed certain persons as executors, and also as trustees to carry the provisions of the will into effect until the son attained the age of 28 years, and to that end empowered them to sell and convey any property, and provided that the son, on attaining the age of 21, should receive $10,000 as a start in business life, and should receive two-thirds of the income, 'and that, as soon after attaining the age of 28 as he should by adequate security assure to the wife her share of the income, he should receive the rest of the property. Held, that this did not give the whole estate to the son absolutely, and then attempt ineffectively to cut down the estate so given, but postponed the period at which the estate should vest in possession, which was within the power of the testator, and not illegal.

2. WILLS 672(1)—ESTATES CREATED-CREATION OF TRUST.

Though the will did not in terms give the estate to the executors in trust, it created a valid and conventional trust in every other particular, and a devise to the executors in trust would be implied.

Appeal from Trial Term, New York County.

Action by George B. Morss against Frederic B. Allin, individually and as trustee, and others. From a judgment in favor of defendants, after a trial by the court without a jury, plaintiff appeals. Affirmed. Argued before CLARKE, P. J., and SCOTT, SMITH, PAGE, and SHEARN, JJ.

Thomas G. Prioleau, of New York City (George E. Leonard, of New York City, on the brief), for appellant.

William B. Aitken, of New York City (David B. Simpson, of New York City, of counsel), for respondents.

SCOTT, J. The plaintiff sues the executor and executrix of his father's estate, asking that certain paragraphs of the will of the latter be adjudged to be void, and the whole estate, or at least two-thirds part of it, be paid over to plaintiff at once.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

« ForrigeFortsett »