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restriction providing that no building should be erected excepting "firstclass dwelling houses," and that no "trade or business" whatsoever should be conducted on the premises. In the opinion in that case, the opinion of the Fourth Department in Smith v. Graham, 147 N. Y. S. 773, 161 App. Div. 803, affirmed 112 N. E. 1076, 217 N. Y. 655, is quoted, as follows:

"But it would seem to be true that a dwelling, so long as it is used as such, may be also used as a place for carrying on some kinds of business, provided such business is of such character as to be no inconvenience to neighboring property holders."

And in Iselin v. Flynn, 154 N. Y. S. 133, 90 Misc. Rep. 164, an action brought to restrain the conduct of a dressmaking establishment on premises affected by a restrictive covenant confining the premises to first-class dwelling houses, injunctive relief was resisted on the ground that the presence of physicians on the block practicing their professions in their homes changed the character of the occupancy from residence to business. There it was said:

A number of physicians eminent in their profession have taken up residence in the street, and it is claimed that they in fact conduct business which has consequential effects upon the neighborhood. It is not necessary to enter upon an ethical discussion of the difference between a livelihood gained by the practice of a profession and that by a business vocation. The law is practical. It is not concerned with abstractions, but with the actual affairs of men, and it recognizes the distinction between the practice of a profession and the conduct of a mercantile business. One is purely personal, depending upon the skill or art of the individual. The other may consist in ability to organize and manage a shop or exchange where commodities are bought or sold. Neither the spirit nor the letter of the restrictive covenant intended or expressed prohibition of the practice of a profession, nor can sophistry pervert the real intent and plain meaning of the word 'business' to include 'profession.'"'

In the case of Booth v. Knipe, 122 N. E. 202, 204, 225 N. Y. 390, at page 397, which the respondent says is directly in point, the Court of Appeals said:

"We cannot doubt that the attempted use is a breach of the restriction. The lease provides that the building shall be 'occupied as a sanatorium and not otherwise.' The evidence makes it clear that it is used as a maternity hospital. By no stretch of language can we say that this is equivalent to use as a private residence for one family.'

A perversion of analogy would result from attempting to hold these cases even approximately similar.

[3] Much is made of the fact that at the time of the commencement of the action the plaintiffs were maintaining a wall projecting from their building located at the southwest corner of Madison avenue and Seventy-First street, about 16 feet high. It should be borne in mind that this

was the condition when the plaintiffs acquired the corner to protect their home, and that in the early part of March, 1925, they removed the upper 4 feet of this wall, so as to bring it within the limit of the restriction, and this was the condition at the time of trial, at which period equity finds its facts and molds its decree.

[4] The plaintiffs herein did not move for an injunction pendente lite. There is testimony, however, that, as soon as plaintiffs learned of the situation, the matter was taken up with the defendant Finch, in the effort to arrive at an amicable settlement. When negotiation failed, this action was immediately brought. The defendants proceeded with their structure, heedless of plaintiffs' protest. Plaintiffs justifiedly state there was no occasion for the defendants' unseemly haste. If unwilling to await this action, they could themselves have brought an action for a declaratory judgment as to their rights and duties (Civil Prac tice Act, § 473; Rules Civil Practice, rules 210-214) before commencing their building operation, prima facie a breach of a solemn covenant. Certainly they do not, through their precipitate conduct in forestalling legal action, create an equity in their favor. The notion that a defendant, warned against a threatened violation, can obtain immunity from an injunction by paying no attention to the warning, is unsound in law. Litigants cannot with impunity thus race with the court's process. If speed fortifies a defendant's position in law, all a defendant has to do to escape an injunction is to outstrip the court's process in point of time. A decent regard for the orderly determination of the rights of the litigants forbids the acceptance of such doctrine.

We find that nothing could be less doubtful than that, when the restriction was created, it was desired to maintain this particular block as one for private dwellings only. If independent or original judgment was controlling it would be restrained by our own ruling in Pagenstecher v. Carlson, 131 N. Y. S. 413, 146 App. Div. 738 (First Department, 1911). The plaintiff in that case owned three houses on the south side of West Fortieth street, between Fifth and Sixth avenues, being Nos. 48, 50, and 52. The defendant owned No. 38 West Fortieth street. The restriction affecting these properties was imposed in 1871 upon the holding of a partition sale of about half of the block on the south side of West Fortieth street. The restriction confined the property to private dwelling houses. The defendant threatened to alter her house for business purposes. In rejecting the defendant's contention that the invasion of business in this district entitled her to alter her building for business purposes in defiance of the restriction, this court, through Mr. Justice Miller, said:

While it is quite true that the current of business has reached the restricted territory, that of itself does not afford ground for denying equitable relief, for, as was said by Danforth, J., in Trustees of Columbia College v. Thacher, 87 N. Y. 311, 319 [41 Am. Rep. 365], it is apparent that such encroachment was anticipated. It cannot be said that the encroach

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ments of business have made the property undesirable for private residences. A fine public building and a park occupy the block on the north side of Fortieth street. The plaintiff says that she wishes to enjoy her property as a private residence. When she purchased it, she had a right to rely upon the assumption that the encroachment of business would be stopped at the line of the restricted territory, and, in our judgment, it is no answer to her claim for equitable relief that the property may be worth more for business purposes. The defendant bought, knowing, or chargeable with knowledge of, the restrictive covenant. If the further encroachment of business on the block be prevented, the plaintiff's premises may remain desirable for residence purposes, and it cannot be said, therefore, that the enforcement of the covenant will harm the defendant without conferring any substantial benefit on the plaintiff."

[5] The respondents urge as factors in their favor the fact that the restriction has to run to 1929 only, and the further fact that in 1916 the board of estimate established a business district embracing the location in question. While these are elements which were doubtless considered in the purchase of this corner property, yet they were not destructive of plaintiffs' or the other covenantees' privileges, and the purchaser cannot be heard now to claim that he is injured by the enforcement of the restriction. Since he entered the matter apprised of the protest of his neighbor, and concluded the restriction was no longer binding, he accepted the hazard. That the result would be adverse to his view was inevitable, if the terms of a covenant are to continue to have judicial sanction.

The judgment appealed from should be reversed, with costs, and judgment entered in favor of the plaintiffs for the relief asked for, with costs. Settle order containing findings on notice.

DOWLING and MARTIN, JJ., concur.

MERRELL, J. (dissenting). The action was brought to obtain a mandatory injunction requiring the defendants to remove a two-story business building erected by the defendant Joray Holding Company, Inc., on real property on the northwest corner of Madison avenue and Seventieth street in the borough of Manhattan, New York City, owned by the defendant Edward R. Finch. The building sought to be removed is a new one, erected since July 1, 1924, when the real property in question was leased by the defendant Finch to the defendant Joray Holding Company, Inc. The building was erected at a cost of between $43,000 and $44,000. The plaintiffs in the action seek to compel the removal of said building by virtue of a restrictive covenant contained in a prior deed conveying said premises, and subject to which the defendant Finch took title. The restriction expires on December 31, 1928, having, therefore, less than 2 years and 10 months still to run,

after which time the premises may be devoted to such uses as the owners thereof may see fit. The covenant in question forbade the erection upon the said real property of any building, except a private dwelling house for a single family. No application was made herein for a temporary injunction pendente lite. At the close of the trial, upon the evidence presented, the court directed judgment in favor of the defendants, dismissing the plaintiffs' complaint. The deed under which the defendant Finch holds title to the property in question is subject to the following restrictive covenant:

The said party hereto of the second part, for him (her) self, his (her) heirs and assigns, hereby covenants and agrees to and with the said party of the first part, its successors or assigns, that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the 1st day of January, nineteen hundred and twenty-nine (1929), erect or permit upon the above granted premises, or any part thereof, any building, except a dwelling house for a single family, and further that neither he (she) nor his (her) heirs or assigns, shall or will at any time prior to the said 1st day of January, nineteen hundred and twenty-nine (1929), erect or permit upon the above granted premises any such building, or any other structure, or any extension thereof, or projection therefrom (except partition walls or fences not exceeding twelve feet in height) within ten feet of a vertical plane passing through the center line of the block between Seventieth and Seventy-First streets." (Italics are the writer's.)

The defendant Finch acquired said property by deed bearing date March 3, 1924, and on July 1st following he leased the plot to the defendant Joray Holding Company, Inc., which erected thereon, during the summer of 1924, a substantial business building, built of whitestone, two stories in height. If the aforesaid restrictive covenant was in force at the time title to the real property passed to the defendant Finch, and at the time of the erection of the business building thereon by the defendant Joray Holding Company, Inc., and no other elements entered into the question, then the plaintiffs should have received the equitable relief for which they prayed.

Two defenses were interposed by the defendants at the trial: First, it was the contention of the defendants that in 1907, when the restriction. was placed upon the property, the neighborhood was a residential one, there being in that vicinity only an occasional and widely separated business establishment, but that since 1907 the character of the neighborhood had radically changed, and that at the time of the commencement of the action business establishments had taken possession and the neighborhood was one devoted almost exclusively to business. The second defense interposed was that the plaintiffs themselves did not come into court with clean hands, and that they had and still were openly violating the very covenant which they seek to enforce. The Trial Term held with the defendants and denied the plaintiffs injunctive relief.

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The block in question, bounded on the west by Fifth avenue, on the south by Seventieth street, on the east by Madison avenue, and on the north by Seventy-First street, was for many years prior to 1907 owned by the New York Public Library. The library first sold the westerly portion of the block lying along Fifth avenue and extending back 175. feet. This plot comprised a little less than half the entire block, and was sold by the Public Library without restriction. In 1907 a plan was formulated to restrict the easterly portion of the block, and thereafter, when it disposed of various portions of the property remaining, it did so by deeds containing or subject to the same restrictive covenant as that hereinbefore mentioned. In 1916 the board of estimate and apportionment of the city of New York adopted a resolution, known as the "Building Zone Resolution," under the provisions of which both the east and west sides of Madison avenue for a distance of 100 feet from each side of the avenue from Fortieth street to 120th street was established as a business district, and from that time to the present, under said resolution, said territory has been established as a business district. On May 5, 1922, the board of estimate and apportionment adopted a resolution providing for the widening of Madison avenue from Sixtieth to Seventy-Second streets, with a view of providing for the increased business traffic on the avenue. In February, 1922, the plaintiffs purchased a plot within the restricted area on the south side of Seventy-, First street, 45 feet in width and with a depth of 100 feet 5 inches. On this plot the plaintiffs erected a residence, wherein they now reside. Later on the plaintiffs bought the building occupying the southwest corner of Madison avenue and Seventy-First street, which building was then and is still occupied, as the respondents claim, contrary to the restrictive covenant, by three physicians for business purposes. The defendant Finch purchased the lot in question on March 3, 1924, and, as before stated, on July 1, 1924, he leased said plot to the defendant Joray Holding Company, Inc. At the time the premises in question were conveyed to the defendant Finch the neighborhood outside the block upon which the property was situated was occupied almost exclusively by business buildings.

In substantiation of their first defense, the defendants sought to show that since the time when said restrictions were imposed the use of the property in the neighborhood had radically changed. The defendant. Finch testified that in 1907, when the restrictions were first placed upon the property, the neighborhood was a fine residential one, and that at that time the nearest place of business to the north of the property in question was a drug store located at the southeast corner of SeventyFifth street, and that the nearest place of business on Madison avenue to the south was in the vicinity of Fifty-Ninth street. The defendant Finch further testified that at the time he purchased the property every