페이지 이미지
PDF
ePub

March 31, 1890, when they obtained their deeds, that all these lots were to be restricted property. Upon being notified by Thorne & Angell that their deeds did not contain restrictions, they conveyed these lots to Thorne & Angell, who, on April 26, 1890, the day after the conveyance of lot 36a to defendants' predecessor, reconveyed these lots, 40, 41, and 42, to Ritter and Rislay by deeds containing such restrictions.

May 6, 1890, Thorne & Angell conveyed lots 21 and 22 to Edward O'Grady by deed without restrictions. Thereafter a mortgage was executed on lot 23 without restrictions, which was foreclosed, and that lot is now owned without restrictions. These three lots, 21, 22 and 23, block A, are in the rear of defendants' lot, and can now be used for other than residence purposes. Thorne & Angell conveyed the west 6 feet of lot 35 to Abby L. Dunham November 26, 1890, with restrictions, at which time lots 21 and 22 were held by Edward O'Grady without restrictions. Thorne & Angell conveyed the east 54 feet of lot 35 to Abby L. Dunham June 24, 1891, with restrictions, at which time lots 21 and 22 were held by Edward O'Grady without restrictions. Thorne & Angell conveyed lot 37 to Leonard W. Crocker July 17, 1890, with restrictions, and on December 28, 1890, Crocker conveyed to Abby L. Dunham the east 2 feet of lot 37 with restrictions, at which time lots 21 and 22 were held by Edward O'Grady without restrictions.

Prior to May 6, 1890, the date of the O'Grady conveyances, there had been conveyed 8 lots of block A with restrictions, and since that date 21 lots of this block have been conveyed with restrictions. With those 21 lots there has been no mutuality of covenants to restrict for residence purposes lots 21 and 22 at any time, of which number defendants own lot 35 and part of lot 37. Defendant as owner of lot 36 has no right to enforce the restriction as to lots 40, 41, and 42, and as owner of lot 35 and part of lot 37 he has no such right as to lots 21 and 22. It appears that by reason of the execution of the mortgage on lot 23, without restrictions, prior to defendants' deed of lot 35 and part of lot 37, and the subsequent foreclosure sale, that as to lot 23 defendant, as owner of lot 35 and part of lot 37, has no power to enforce such restrictive covenant.

It thus appears that the alleged mutuality of covenant to restrict to residence purposes does not exist between lots 40, 41, and 42 and defendants' lot 36, nor between lots 21, 22, and 23 and defendants' lot 35 and part of lot 37. There are 6 lots in block A out of a total of 28, excluding defendants' 3 lots, from which the burden of restrictive covenants have been removed so far as defendants are concerned. Is it fair to assume that defendants' 3 lots are burdened with a mutual covenant, which, to be mutual, must be binding on 31 lots, when defendant is denied the benefit of such a covenant relative to 6 of the lots? It is very clear that the exemptions of lots 21, 22, and 23 from this restrictive covenant was not the result of inadvertence or carelessness. It is apparent that it was intentional. The fact that lots 21, 22, and 23 were deliberately conveyed without restrictions goes a long way to establish that there never was a general, mutual, uniform

152 N.Y.S.-2

plan of restriction to residence purposes binding upon block A, enforceable by any and all lot owners against each and all lot owners; at least it effectually rebuts whatever presumptions plaintiff can claim from the evidence.

[2] The validity of the covenant depends upon its being mutual. There is not a suggestion that the failure to restrict the use of lots 21, 22, and 23 was an inadvertence. There is nothing to indicate that there existed a uniform plan for the improvement of block A which was the subject of a mutual covenant, operative against each lot owner for the general benefit of each or all other lot owners. The existence of such a plan and mutual covenant depending as it does upon the way and manner of its execution by the insertion of restrictions in the several conveyances, the finding of 6 lots out of a total of 28, excluding defendants’ 3 lots, that are not subject to restrictions that can be enforced by defendant is destructive of the essential mutuality, and the whole scheme as to block A fails of proof. To say that because 6 lots are freed from restrictions they are simply to be dropped from consideration, and the scheme and plan preserved as to the remaining 25 lots, is the arbitrary creation of a new plan that has been proved not to be uniform, not to be mutual, not to be binding on the whole block, and is without proof that it existed or ever was understood to exist. If it be true that the existence of a uniform plan with mutual covenants of restriction has not been proved as to block A, for like reason no such plan and covenant have been established for the entire tract. The conveyance of more than 40 lots by one method of computation, and 63 by another, freed from restrictions, is so destructive of the alleged uniform plan and mutual covenant that it cannot be found as a fact that such plan and covenant existed. If it ever existed, the release by the original grantors of such a large number of lots from the restrictions is such a breach of their covenant that all lots would be so conveyed that defendants could enforce a restriction against all lots, that it must be held that defendants can invoke such breach in this action as a defense.

The conclusion is reached that plaintiffs' complaint must be dismissed.

(166 App. Div. 550)

PEOPLE ex rel. KIELEY Y. LENT et al. (Supreme Court, Appellate Division, Second Department. March 12, 1915.) 1. THEATERS AND SHOWS 3— LICENSES-CONDITIONS.

A license for an exhibition of moving pictures may be conditionally granted, subject to reasonable hours of opening and other limitations upon its exercise.

[Ed. Note.-For other cases, see Theaters and Shows, Cent. Dig. $ 3;

Dec. Dig. Om3.] 2. MUNICIPAL CORPORATIONS C 633–VIOLATION OF ORDINANCE-POWER TO

FINE AND IMPRISON.

The derivative power of a municipality to fine and imprison can only exist under and in the due enforcement of authority clearly given to it,

and the intent that its ordinances may supersede the state law will not For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

be inferred from general grants of power, nor held to exist as an implied or incidental right. The provisions of a municipal charter, however broad, are subject to such restrictions as may be imposed by general laws, and Laws 1913, c. 247, amending General City Law (Consol. Laws, c. 21) $ 20, subd, 22, authorizing the enforcement of ordinances by penalties and imprisonment, did not surrender the general power to legislate against criminal offense.

[Ed. Note.- For other cases, see Municipal Corporations, Cent. Dig. $$

1390--1399; Dec. Dig. Omw 633.]
3. SUNDAY Cm 2-OBSERVANCE-AMUSEMENTS.

The Legislature alone may prescribe how Sunday shall be kept, and hence the city of Yonkers could not independently compel anal enforce Sunday closing of a moving picture place by fine and imprisonment, unless such prohibition was part of the law and policy declared by the Legislature.

[Ed. Note.--For other cases, see Sunday, Cent. Dig. § 2; Dec. Dig.

Habeas

corpus, on relation of Wolden Kieley, against William H. Lent and others. Writ sustained, and relator discharged.

Argued before JENKS, P. J., and BURR, CARR, RICH, and
PUTNAM, JJ.

John J. Finn, of New York City (William E. Butler, of New York
City, on the brief), for relator.

Frederick E. Weeks, Dist. Atty., of White Plains, and Thomas F. Curran, Corp. Counsel, of Yonkers, for respondents.

1

PUTNAM, J. The powers of the city of Yonkers, under its municipal charter, to regulate amusements and common shows, include a right to license an exhibition of moving pictures. The city ordinance (section 13), however, prohibits such a show on Sunday, and declares that every person violating this section shall "forfeit a penalty of not less than twenty-five dollars ($25.00) nor more than one hundred dollars ($100.00) in the discretion of the magistrate convicting.” The relator has been arrested for violation of this section.

[1,2] A license may be conditionally granted. It may be given subject to certain reasonable hours of opening and other limits upon its exercise. But the derivative power of a municipality to fine and imprison can only exist under and in the due enforcement of authority clearly committed to the municipality. The intent that municipal corporations by ordinance can supersede the state law will not be inferred from general grants of power, nor will such authority be held to exist as an implied or incidental right. Dillon, Municipal Corporations, (5th Ed.) § 632. As all municipal authority comes from the Legislature, the provisions of municipal charters, however broad, are subject to such restrictions as may be imposed by general laws. Lechner v. Village of Newark, 19 Misc. Rep. 452, 454, 44 N. Y. Supp. 556. The additional powers by chapter 247, Laws of 1913, amending the General City Law (chapter 21, Consol. Laws), giving authority to enforce ordinances by affixing penalties, forfeitures, and imprisonment (section 20, subdiv. 22), did not, and could not, surrender the general wFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

† Laws 1908, c. 452, art. 3, § 1, subd. 27.

[merged small][ocr errors][merged small][merged small][ocr errors][ocr errors]

power to legislate against criminal offenses, which remains in the Legislature. People v. Jarvis, 19 App. Div. 466, 46 N. Y. Supp. 596.

[3] The Legislature alone may command how Sunday shall be kept. Neuendorff v. Duryea, 69 N. Y. 557, 25 Am. Rep. 235; People v. Dunford, 207 N. Y. 17, 20, 100 N. E. 433; People v. Moses, 140 N. Y. 215, 35 N. E. 499. Hence the city of Yonkers cannot independently compel and enforce Sunday closing, by means of fine or imprisonment, unless such prohibition is part of the law and policy as declared by the Legislature.

It follows that the writ should be sustained, and the relator discharged. All concur; BURR, J., in the result.

[blocks in formation]

(Supreme Court, Appellate Division, Second Department. March 12, 1915.) New TRIAL Ow71-GROUNDS INSUFFICIENCY OF EVIDENCE.

The setting aside of a verdict on conflicting and irreconcilable evidence, when sustained by evidence, rendered under proper instructions, is an improper exercise of discretion, and the verdict will be reinstated.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. 88 114, 145; Dec. Dig. 71.)

Putnam, J., dissenting.
Appeal from Trial Term, Richmond County.

Action by Henry W. Brush against Fannie M. Constable. From an order setting aside a verdict for defendant, and granting plaintiff's motion for new trial, defendant appeals. Reversed, and verdict reinstated.

Argued before JENKS, P. J., and BURR, STAPLETON, RICH, and PUTNAM, JJ.

Anthony M. Menkel, of New York City (Henry S. Curtis, of New York City, on the brief), for appellant.

Samuel H. Evins, of New York City, for respondent.

[ocr errors]

RICH, J. This appeal is from an order of the Trial Term setting aside a verdict in favor of defendant and directing a new trial, in an action to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of defendant's chauffeur in operating an automobile owned by her.

The accident was the collision of two automobiles and it happened at about noon on July 26, 1913, in the village of Southampton, near the junction of Toilsome lane, a public highway, and Schermerhorn road, a private road leading from the Schermerhorn property to the highway at right angles. The roadbed of Toilsome lane is 30 feet wide; on each side is a grass plat some 20 feet in width. On the south side, the grass plat extends back from the highway roadbed to the hedge on the Schermerhorn property. At the point where Schermerhorni road meets the hedge line, it separates, one branch or fork running to the west, the other to the east, until they unite with the roadbed

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

of the highway. On the day of the accident the plaintiff was driving his car in an easterly direction in the center of the roadbed of Toilsome lane. The defendant's chauffeur was proceeding through Schermerhorn road towards Toilsome lane, passing over the west fork. The hedge obstructed the view of both drivers, and prevented each from seeing the other until near the junction. There was no other vehicle on either road at or near their junction at the time of the collision.

The plaintiff's version of the accident is that he was traveling at at the rate of 12 miles an hour, and when about 75 feet from the junction he saw the hood of defendant's automobile as it emerged from behind the hedge, and, fearing a collision, turned his car to the right, ran it out of the roadway onto the grass plat, and brought it to a standstill, and that the defendant's car came out of the private road into the highway, turned in a semicircle to the left, and ran into his car. Testimony was given by himself, his sister, and one Williams, who were riding with him, tending to support this contention.

The defendant's theory is that her car was proceeding through Schermerhorn road at a slow rate of speed, 4 or 5 miles an hour, and when it came opposite the hedge the chauffeur saw the plaintiff's car in the center of Toilsome lane, traveling east at the rate of 25 miles an hour. It appears that as the defendant's car passed the screen of the hedge, and plaintiff's car came into view, her chauffeur turned the car abruptly to the left onto the grass plat, where the collision occurred. At the time of the accident defendant's car had not reached the traveled part of Toilsome lane, and the rule which it is contended would require the defendant to go upon the right side of Toilsome lane has no application.

Defendant claims that before she reached the junction of the west fork of the private road over which she was traveling, and while on the grass plat, the plaintiff turned his car sharply to the right and ran into her car. The defendant's contention is supported by the testimony of her chauffeur, one Acker, who testified that after the collision he examined plaintiff's car and found it to be on the high speed, and that the brakes were not set, and of Joseph Goodwin, an eyewitness of the accident. The testimony of the witnesses was conflicting and irreconcilable, and presented a question of fact which was peculiarly for the jury. It was submitted in a charge free from error, to which no exceptions were taken by plaintiff.

The learned trial justice stated no reasons for setting the verdict aside, and the only question before us is whether the verdict was so greatly against the weight of the evidence as to justify the order setting it aside. Although the conclusion reached by the jury may have been one which the learned trial court would not have reached, nevertheless the verdict is not so contrary to the evidence as to appear absurd, or to suggest suspicion of evil influence, manifest mistake, or error. The jury was the sole judge of the facts, the trial was fair, there is sufficient evidence to sustain the verdict, and I think the act of the trial court in vacating and setting it aside was erroneous, and an improper exercise of discretion. Berkowitz v. Consolidated Gas Co. of N. Y., 134 App. Div. 389, 119 N. Y. Supp. 100, affirmed with

« 이전계속 »