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The vital and essential difference between the Columbia College Case and the present case is that in the Columbia College Case the purpose of the covenant was to make the dominant tenement more available and desirable for residential purposes, and for that reason the covenant possessed the qualities of an easement; whereas in the present case the purpose of the covenant is not for the benefit of plaintiffs' land, but for plaintiffs' personal benefit, by preventing competition to their business, and the covenant lacks the qualities of an easement, and has only the force and effect of a personal contract.

[7] Enforcement of restrictions or easements against the use of land for business in a court of equity is dependent on the continuance of conditions which make its observance beneficial to the dominant tenement. When by changes in the neighborhood it ceases to be beneficial, and its enforcement will merely prevent the use of the servient tenement for a business for which it is available, without any corresponding benefit to the dominant tenement, a court of equity will not enforce it. McClure v. Leaycraft, 183 N. Y. 36, 75 N. E. 961, 5 Ann. Cas. 45, and cases there cited.

[8] In the present case the respective properties of the plaintiffs and defendant are situated in a business neighborhood, and both are especially available to the carrying on of a coal and ice business. The enforcement of the restriction would not render plaintiffs' land more available for carrying on a coal and ice business, and would merely prevent defendant from using its property for the purposes to which it is adaptable. My conclusion is that, the sole object and purpose of the restrictive covenant being to prevent the carrying on of a business in competition with plaintiffs' business, and not in any way to benefit plaintiffs' land itself, it is a personal contract, and not an easement or covenant running with the land.

[9] It is true that it is well established that a court of equity will sometimes impose the burden of a covenant relating to lands on the alience of such lands, on principles altogether aside from the existence of an easement or the capacity of a covenant to adhere to the title. The only question to be considered is whether the covenant in the present case is embraced within the proper limits of this branch of equitable jurisdiction. The equities applied in such cases are those which arise from the facts and circumstances of the particular case and cannot be generally defined. It seems to me that the cases on the subject do not justify the broad rule that a court of equity will always enforce against subsequent grantees with notice any agreement made by a prior.owner restricting the use of real estate without regard to the law of easements or covenants running with the land.

[10, 11] The law does not permit the owner of real estate to contract in matters affecting title as he sees fit. He cannot create new kinds of easements or covenants running with the land, which are not authorized or recognized at law. Although a court of equity is not controlled entirely by the strict rules of law relating to easements and such covenants, and will depart therefrom if the equities of the particular case require it, it will never interfere by way of injunction or in any manner to enforce restrictive covenants, when convinced that

(182 N.Y.8.) they could receive no support or countenance at law, because contrary to its policy and in conflict with public interest.

The cases upon which plaintiffs seem chiefly to rely are Hodge v. Sloan, 107 N. Y. 244, 117 N. E. 335, 1 Am. St. Rep. 816, and Uihlein v. Matthews, 172 N. Y. 154, 64 N. E. 792. In both of those cases there was a restrictive covenant against the carrying on of a business on the property of the covenantor which would be competitive with the business carried on upon the property of the covenantee. These cases do not, however, support the proposition that notice to the covenantor's grantee, prior to conveyance to him, of such restrictive covenant, under all circumstances, no matter how or with whom made, is of itself sufficient to create an equity which requires the grantee to observe the covenant. The Hodge and Uihlein Cases differ from the present case, in that in both of them, not only was the restrictive covenant contained in a deed conveying real estate, but it was a part of the contract for the sale of real estate, affecting the consideration given for the property. In such cases the fundamental equity which requires the enforcement of the restriction against the covenantor's grantee with notice is that otherwise the grantee would acquire that which he knew had not been bought or paid for by his grantor. It seems to me that those cases are somewhat in the nature of actions for specific performance of contracts to purchase real estate.

No such equity can exist in the present case. The covenantees in the restrictive agreement never owned the covenantee's property, but, being wholly strangers to its title, went to the covenantor and obtained the restrictive agreement merely for a money consideration. Under these circumstances the restrictive agreement was only a personal contract. Harsha v. Reid, 45 N. Y. 415, 418. Not only do the facts and circumstances of the present case fail to give rise to any equity which would require defendant to observe the restrictive covenant, but it appears therefrom that Rubel Bros.' conduct in obtaining the restrictive agreement was wrongful and inequitable toward the associated small coal dealers, whom the defendant now represents.

Plaintiffs' situation was not in any way altered or changed by the recovery of the judgment of Municipal Coal Company against the Empire City Lumber Company, or by the purchase of the property at the foreclosure sale by the Municipal Coal Company, and there is nothing that the Municipal Coal Company has or has not done which precludes the court from refusing to plaintiffs equitable relief on the ground of their wrongful and unconscionable conduct in obtaining the restrictive agreement.

[12] While the restrictive covenant is in restraint of trade, the restraint is not general but local. The covenant does not restrict the Empire City Lumber Company, its successors and assigns, personally from carrying on a coal and ice business, but attempts to restrict the use of a piece of real estate for a coal and ice business. Because of the location of the real estate, the enforcement of the restriction would give plaintiffs a monopoly so far as the business of the local small coal dealers are concerned, and in consequence the poor people of a crowded

city district would be deprived of the benefit which would accrue from the carrying on of a competitive coal business upon the property.

[13] Injunctive relief may be refused, where the granting of it would be detrimental to public interest and welfare.

Judgment for defendant, dismissing the complaint, with costs. Settle findings on notice.

(192 App. Div. 109)

LYONS v. KNIGHTS OF MACCABEES OF THE WORLD et al.

(Supreme Court, Appellate Division, Fourth Department. May 5, 1920.) 1. Insurance ww797—Voluntary payment of premiums by third person gives

no rights to proceeds of policy.

Voluntary payment by third person of dues and assessments in arrears, which ipso facto under the by-laws fully reinstated insured's membership,

gave such third person no title to the insurance. 2. Insurance Ew797—Third person, paying dues and assessments, can claim no

more than lien upon insurance money.

Payment by a third person of dues and assessments in arrears, and subsequent assessments and dues, even if not voluntary, could give such third person no more than a lien on the insurance money on the death

of the insured. 3. Frauds, statute of Em 139 (2)-Consummated oral agreement to carry in

surance in favor of wife held not within statute.

An oral agreement, in consideration of a promise to marry, whereby husband took out insurance and made wife beneficiary, was not void under the statute of frauds (Personal Property Law, § 31), where carried out by the husband during life, becoming an executed contract at his death, although third persons after a certain date paid the dues and assessments, and a new certificate in their favor was issued without the consent of the wife; payments by the third person, as far as the wife was

concerned, being payments made by the husband. 4. Insurance On 783—Beneficiary acquired vested interest.

A beneficiary in a certificate of insurance, taken out in a fraternal benefit association in 1898, acquired a vested interest therein, on delivery of the same to her, that could not be affected by any effort of insured to

change the beneficiary. 5. Insurance w770—Statute permitting change of beneficiaries could not im

pair prior contract.

Insurance Law, $ 231, subd. 2, permitting an insured to change beneficiaries, could not impair a contract made prior to its passage.

Appeal from Equity Term, Chautauqua County.

Action by Nellie Lyons against the Knights of Maccabees of the World, impleaded with Delia Lyons and Mary Lyons. From a judgment in favor of the plaintiff, entered upon a decision of the court after a trial at Equity Term, defendants appeal. Judgment and order affirmed.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Irving W. Cole and Meritt N. Baker, both of Buffalo, for appellants.

Thomas P. Heffernan and Nugent & Heffernan, all of Dunkirk, for respondent.

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

(182 N.Y.S.) DE ANGELIS, J. The judgment under review awards to the plaintiff the proceeds of a contract of life insurance evidenced by a benefit certificate, numbered 46009, issued by the Knights of the Maccabees of the World, a foreign corporation of Port Huron, in the state of Michigan, on the 28th day of September, 1898, by which contract of insurance such corporation insured the life of one John J. Lyons, one of its members, in the sum of $2,000, payable upon his death to the plaintiff, his widow, as sole beneficiary, which proceeds were deposited in the Lake Shore National Bank of Dunkirk, N. Y., pursuant to an order of interpleader granted in an action brought by the plaintiff against the Maccabees, a foreign corporation, of Detroit, in the state of Michigan, which corporation succeeded to the ownership and possession of all the property, rights, and privileges, and assumed all the obligations, of the Knights of the Maccabees of the World, and Delia Lyons and Mary Lyons, to recover the amount of the insurance and to cancel and annul a certificate issued by the Knights of the Maccabees of the World, dated March 6, 1912, and the application upon which it was issued, which certificate was issued to take the place of, and bears the same number as, that dated September 28, 1898, by which an attempt was made to substitute the defendants · Delia Lyons and Mary Lyons as sole beneficiaries in the insurance contract or certificate in the place and stead of the plaintiff, upon the ground that the certificate of March 6, 1912, was obtained by fraud and in violation of an agreement whereby the plaintiff acquired a vested interest in the insurance contract, by reason of the fact that John J. Lyons obtained the insurance, and made the plaintiff beneficary therein, and carried the same down to the time of his death, in fulfillment of his oral promise so to do in consideration of her promise to marry him.

The Equity Term has found upon sufficient evidence that the oral contract between the plaintiff and her husband above referred to was made; that the contract was fulfilled, both upon her part and his; that the marriage took place on the 28th day of December, 1897 ; that the contract of insurance above referred to was made; that Lyons delivered to her the benefit certificate of insurance, dated the 28th day of September, 1898; that she retained the same down to the time of his death; that his death occurred on the 13th day of November, 1916; that the plaintiff was the lawful wife, and is now the widow, of Lyons; that the defendants Delia Lyons and Mary Lyons are daughters of Lyons by a former marriage; that on or about the 5th day of February, 1912, John J. Lyons made application to the Knights of the Maccabees of the World to have the beneficiary named in benefit certificate No. 46009, issued September 28, 1898, changed to the defendants Delia Lyons and Mary Lyons; that thereafter, and on or about March 6, 1912, a new benefit certificate, bearing No. 46009, was made payable to Delia Lyons and Mary Lyons, without the consent of the plaintiff; that at the date of his death Lyons was a member in good standing of the Order of the Maccabees, formerly the Knights of the Maccabees of the World, and benefit certificate No. 46009, bearing date September 28, 1898, was in full force; that Delia Lyons and Mary Lyons, since February 5, 1912, and up to November 13, 1916, paid the premiums upon benefit certificate No. 46009; and that the plaintiff in open court offered to refund to the defendants the amount of all premiums paid by them on such benefit certificate.

The judgment of the Equity Term determined and adjudged that the benefit certificate dated March 6, 1912, and the application therefor were void; awarded to the plaintiff the proceeds of the insurance contract deposited with the Lake Shore National Bank of Dumkirk, N. Y., with the accumulated interest thereon; awarded costs in favor of the plaintiff against the defendants; directed application of the costs to the payment of the amount of premiums paid by the defendants upon benefit certificate No. 46009 between the 5th day of February, 1912, and the 16th day of November, 1913, and the payment by the plaintiff of the remainder of that amount, if any, after such application to the defendants.

It must be clearly kept in view that the record shows the papers in three applications made by the defendant with reference to this matter of insurance, to wit: (1) The original application for membership, made and verified January 24, 1898, upon which certificate No. 46009 for $1,000, dated February 28, 1898, with the plaintiff as the sole beneficiary, was issued, and in place of which another certificate bearing the same number, with the plaintiff as the sole beneficiary, was issued on the 28th day of September, 1898, for $2,000, being the certificate which the plaintiff now holds; (2) application in two forms for reinstatement for failure to pay dues, one dated December 29, 1911, and the other December 31, 1911; and (3) application dated February 5, 1912, for a new certificate with the defendants as sole beneficiaries to take the place of the certificate dated September 28, 1898, in which application it is recited that the certificate dated September 28, 1898, is in the possession of the plaintiff and retained by her, and that she refuses to surrender it on demand, and in which application it is recited that John J. Lyons is a member of the order in good standing. In connection with that application there is the official certification of the order dated February 5, 1912, to the effect that Lyons was at that time a beneficial member of the order and in good financial standing, having paid all his dues and assessments to

It appears, and the Equity Term has found, that the only purpose of the last-mentioned application and of the certificate thereon issued to the defendants was to substitute the defendants as the beneficiaries of the insurance in place of the plaintiff.

[1,2] It appears that the by-laws of the order, which existed when the certificate of September 28, 1898, was issued, were amended, because at that time a member might be reinstated at any time within six months after his suspension. At the time of the suspension of John J. Lyons, referred to in the foregoing, a life member could not be reinstated who had been under suspension for 90 days. The record shows that Lyons was suspended on the 31st day of October, 1911, and that he was fully reinstated, pursuant to section 334 and section 335 of the by-laws, within 90 days from that time. The

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