Atlantic Dock Co. v. Leavitt , 50 Barb. 135 ( 1867 )

The following opinion was delivered by the judge at special term:

Gilbert, J.

The acceptance by Worcester of the conveyance containing the covenant in question, was equivalent to an express agreement on his part to perform the same, and this obligation affected the title of his grantees; “ qui sentit commodum sentiré debet et onus.” (2 Co. Lit. by Thomas, 187. 9 Paige, 659. 5 B. & G. 589.)

The question is whether there has been a breach of the duty thus created. That duty was “ inter alia” not to erect or permit upon the premises conveyed, any brewery, distillery; slaughter house, # other noxious or dangerous trade or business.” The defendants in the first mentioned case have erected a manufactory for the distillation of resin oil. The defendants in the other case have erected a manufactory for the production of paraffine. In both cases the buildings and" machinery are like those usually employed in the distillatiori of alcohol, and the evidence shows that such distillation might be accomplished by means thereof. I am of the opinion that the duty assumed by the defendants disables them from erecting or maintaining such buildings or machinery, and that it is not necessary, in order to show a breach thereof, to prove an actual use of such buildings and machinery for the purpose of a distillery. It is enough that they may be so used, and a breach is committed before an actual use.

[Orange General Term, September 9, 1867. Wm. Coit and C E. Soule, for the appellants. N. Burchard, for the respondent.

' But if the buildings in question are not distilleries within the meaning of the covenant, I think they fall within the one against “other dangerous trade or lousiness.” The obvious meaning of this language is a prohibition of any business which is as dangerous as that of a distilery, “noscitur a sociis.” The evidence leaves no room for doubt upon this subject.

The chief danger attending the distillation of alcohol arises from the excessive heat employed in the process, whereby the exposure of property to conflagration is increased. Such danger,-in an equal degree, attends the business carried on by the defendants respectively. It is therefore “ dangerous ” within the meaning of the covenant. (Cullen v. Butler, 5 M. & S. 465. Corning v. McCullough, 1 Comst. 69. Aikmin v. Wasson, 24 N. Y. Rep. 484. Broom’s Leg. Max. 450.)

For these reasons, and without passing on the other questions raised, the plaintiff is entitled to judgment.

The Court, at general term, adopted the above opinion of Justice Gilbert, as its own, and affirmed the judgments appealed from.

Lott, J. F. Barnard and Gilbert, Justices.]