Kitching v. . Brown , 180 N.Y. 414 ( 1905 )

I dissent, emphatically, from the determination reached by the majority of the court. I do so upon the ground that neither in any changed conditions of the neighborhood, nor in any legal distinction between the term "tenement house" and that of "apartment house," is there any justification for denying to plaintiffs the equitable relief demanded. It is not a matter of discretion; for it is a general rule of equity that, when there is a breach of such a covenant, a sufficient ground is afforded for the court to interfere by injunction. (Tipping v.Eckersley, 2 K. J. 264; Barrow v. Richard, 8 Paige, 351;Trustees of Columbia College v. Lynch, 70 N.Y. 440; Rowland v. Miller, 139 ib. 93, 102.) I concede that the court might refuse to exercise its restraining power, if the case were one where the conditions had so changed, beyond the probable expectations of the parties, that the enforcement of a covenant of this nature would impose great hardship upon the defendant and could cause no benefit to the plaintiff. That was the case ofTrustees of Columbia College v. Thacher (87 N.Y. 311); where the property, being a dwelling house on Sixth avenue, in New York city, was so injuriously affected by the construction of the elevated railroad, as to render it unfit for the purpose of a dwelling house and only profitable when used for business purposes. But, in this case, the ground for equitable interference is as firm, and the need is just as great, as when, under the protection of the covenant, purchasers improved the land and confidently erected their private dwellings. What is the condition to-day, as compared with that of 1873; when the covenant was made? Then, the land affected was an unimproved tract, somewhat under tillage; whose natural advantages in situation suggested to Dr. Harsen's executors the possibilities of great value, in laying it out for residential sites of the highest class; protecting, for the future, the neighborhood, in that respect, by mutual covenants with the purchasers. They carried out the idea and sold off the lots, with the restrictive covenant in each deed. Private residences of a more or less expensive character were constructed and the plaintiffs, with others, purchased in reliance upon the covenant and its enforceable observance, by all owners of the land. Until the act of the defendant, now complained of as a breach of the covenant, the neighborhood has not been affected, in its quiet residential character. It is impossible to say that the purpose of the restrictive covenant has ceased and, in my opinion, this determination is subversive of the valuable rights, intended, and supposed, to be secured by such an agreement. The fancied security, in which the plaintiffs have dwelt, has been swept away and they are told that the evolution of the tenement house of former days into the apartment house of the day is such an alteration in conditions as to render the covenant unenforceable. There is no protection in statute, or in ordinance, and their covenant affords none, against the towering apartment house; which affects the passage of the light and of the air, which brings the noise and disturbance of a human beehive and which is irresponsible for the orderly, or respectable, character of its tenants. And the legal pretext for the refusal to enforce this covenant is that an "apartment house" is not comprehended within the "tenement house." I say that there is, legally, no distinction between the two and that whatever the difference in wealth of occupants, in equipments and furnishings, or in architecture, it is not real, in the eye of the law, but is one of accidental attributes. A tenement house meant, as it means to-day, a house, or building, so subdivided as to permit of its occupancy in distinct tenements by different persons, or families. That is the primary sense of the term and it is that interpretation, which its use in the covenant should receive, in the interest of a greater degree of certainty in the administration of the law. What is the term "apartment house" but the adaptation of a name from the French language, signifying a house dwelt in by several families? First called "French flats," that, as well as "tenement house," became offensive to the polite ear and so the term "apartment house" was adopted. But, in construing this covenant, we are dealing with the language of a deed, carefully drawn by legal hands, and not with conversational terminology. If we are not to give to "tenement house" its legal meaning of a community house, where shall we draw the line of distinction between the two kinds of tenement houses? Shall it be in the accessories of internal arrangement, or of fittings? But those are accidental; being less complete and costly in one than in another house. One may be, as here, of more ornate architecture and finish; but, in the end, each is a community house. What shall be the number of the fittings, their character, or the cost, which will classify the general building as the one, or the other, kind of house? Shall the amount of the rentals asked mark the distinction? If so, what amount of rental moneys shall distinguish the undesirable tenancies of a poorer class of people from those of a richer class, whose abodes may not be characterized as tenements? The argument made here, as below, is fallacious. As the able counsel for the appellants well puts it, "when the parties provided for a covenant against tenements, they meant tenements of all kinds, * * * no matter what new, or fancy, name might be applied to them. * * * `Any tenement house' means any tenement house, old style, or new style; unless this court is to make over the covenant, as the courts below did." About the time of this covenant, it was appreciated that a higher class of tenements would be more or less violative of its obligation; if we regard the discussion upon the subject by a very capable justice of the Supreme Court, in 1877, in the case of Musgrave v. Sherwood, (53 How. Pr. 315). In that case, Judge WESTBROOK granted an injunction against converting some private houses on Fifth avenue into a "French flat, or an apartment house," because it would be violative of a covenant against any "tenement house." He pointed out, in an opinion, the difficulty in confining the definition of tenement house to abodes of poor families and said that "there is no fixed standard by which poverty and wealth can be measured," and, again, he says, "will the name of the building change as its occupants change? Manifestly * * * not."

The argument noscitur a sociis, to which, in effect, my brother WERNER resorts, can have no application; because the question is not what the term "tenement house" means; it is whether the covenant restricted the neighborhood against the future erection of what would be, in fact, a community house. To those, who are familiar, by residence, or by observation, with the menaces to property values in a great city like New York, in the municipal growth and in the unregarding and aggressive spirit of gain, it is plain that such a restrictive covenant carries with it to intending purchasers a legal assurance as to the character of the neighborhood, upon which they are warranted in relying. Consider what the defendant's act means. Upon a wedged shape block, with some 153 feet of frontage and some 126 feet of rear line, three distinct buildings, of seven stories in height, are constructed. Each has fourteen tenements, or, of politer sound, apartments; which, in the total, amount to forty-two and which, allowing five persons to a family, house a community of 210 persons, without reckoning servants. That means, not only, those probable annoyances, which the propinquity of such buildings gives rise to; but it means the possibility of objectionable tenants, against whom the apartment house affords no guaranty, as would the hotel. In answer to the suggestion as to the high class character of this house, it may be said that the most expensive apartment rents for $1,000, and the cheapest for $600; figures that leave to inference, from their lowness, the character of the tenants who will occupy the various tenements. Thus the peace, the privacy and the respectability of the neighborhood may be endangered, and the property owner is deprived of that measure of enjoyment of his residence, upon which he, legitimately, counted. Nothing has occurred to justify the non-observance of the covenant, which restricted this locality to private dwellings. The railroad, under the bluff and on the shore of the Hudson river, was there in 1873 and, obviously, it was contemplated as continuing there. The defendant is not, as the appellant's counsel suggests, "conforming his property to any change in the neighborhood, but is himself introducing the change."

I think this case to be within the doctrine of Trustees ofColumbia College v. Lynch, (70 N.Y. 440), and of Rowland v.Miller, (139 ib. 93). These cases held, in substance, that the purpose of such a covenant is, by restrictions, to make the lots of land more available and desirable, as sites for private residences of the first class, and to assure to the owners the right to occupy their dwellings without any of those menaces to the character of the neighborhood, which the different uses, comprehended within the descriptive words of the covenant, might constitute.

For these reasons, I vote for the reversal of the judgment.

O'BRIEN, HAIGHT and VANN, JJ., concur with WERNER, J.; CULLEN, Ch. J., and BARTLETT, J., concur with GRAY, J.

Judgment affirmed.