Second Department, November, 1911. App. Div.] February twenty-fourth, and an affidavit verified February 25, 1911, must be deemed to have been decided on the motion papers, there being no additional papers submitted. The defendant's moving papers did not show that there had been any new term of court since the making of the former motion. There had been, however, a new term of court in February, at which the action might have been brought on for trial, and the court was justified in taking judicial cognizance of its own terms for trials. The moving papers, however, do not show sufficiently that the plaintiff neglected unreasonably to proceed to trial at the February term, or that issue had been joined as to all the parties defendant who had appeared in the action. The failure to prosecute at the preceding terms was covered by the order denying the original motion. The motion papers on which the new motion was made were not sufficient to justify the order appealed from. The order is reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint for failure to prosecute is denied, with ten dollars costs. JENKS, P. J., BURR, WOODWARD and RICH, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. CARRIE B. COATES, Appellant, v. HOWARD J. CULLINGFORD, Respondent. Second Department, November 10, 1911. Real property restrictive covenants - building line - injunction when covenants inure to benefit of all grantees - violation of covenant. Where the owners of a large tract of land conveyed it by deeds containing restrictive covenants against the erection of buildings within twenty feet of the street line, and the covenants by their express terms ran to the grantors "as well for their own use as for * *. all persons who them to any part of * may purchase or derive title through * * * the tracts of land laid down" on a certain map, and it is further pro Second Department, November, 1911. [Vol. 147. vided that such covenants shall inure to the benefit of the grantors and "of their grantees who may at any time own any of the land laid down on said map and may be enforced by any of them," the covenants inure to the benefit of the various grantees and may be enforced by any of the owners of the land shown on the map. This is so, although in the deed of a corner lot from the original grantors, the covenant restricted the distance within which a dwelling or store might be erected to only one-half the distance named in the other deeds. The restrictive covenants were entered into with the design of carrying out a general scheme for the improvement and development of the real property owned by the original grantors. There is a mutuality of covenant and consideration which binds each of the grantees one to another and gives to each a remedy for any violation of the covenant by another. Where, however, in a proceeding to restrain the owner of the corner lot from erecting a building less than ten feet from the street line, it appears that the plaintiff and the owners of other lots having the twenty-foot restriction had entered into an agreement modifying the covenant so as to limit the restriction to ten feet and that plaintiff had thereupon erected a building upon her land at a distance of only ten feet from the street line, a judgment for the defendant, who was not a party to the agreement and did not in any way bind himself by its terms, will be affirmed. A court of equity will not grant plaintiff injunctive relief against the defendant's violation of the covenant where it appears that she herself is violating the similar covenant contained in her deed without the defendant's consent. APPEAL by the plaintiff, Carrie B. Coates, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 1st day of December, 1910, upon the decision of the court rendered after a trial at the Queens County Special Term. R. W. Kellogg, for the appellant. Edward L. Frost, for the respondent. BURR, J.: In 1886 Albon P. Man, William Man and Mary E. Man purchased a large tract of land situated at Richmond Hill in Queens county. The land was conveyed to them as joint tenants, with a provision that any two of them might execute deeds thereof, and was laid out by them in blocks and lots. Subsequently and in the same year Albon P. Man and William App. Div.] Second Department, November, 1911. Man conveyed a plot of ground to the Richmond Hill Christian Association. Through various mesne conveyances plaintiff now owns a part of said land situated on the westerly side of Park street, eighty-three feet eight inches southerly from Myrtle avenue. The deed to the Richmond Hill Christian Association contained a covenant as follows: "And the party of the second part, for itself, its successors, heirs and assigns, doth hereby covenant to and with the parties of the first part and each of them, as well for their own use as for each and all persons who may purchase or derive title through or from them to any part of the tracts of land laid down on the aforesaid map, that neither the party of the second part, nor its successors or assigns shall or will at any time hereafter erect or permit upon any part of the land conveyed by the present indenture, * * * any dwelling nearer than twenty feet to the line of any street, road or park, nor any barn, stable or other outhouse nearer than forty feet to the line of any street, road or park laid out or which may be laid out upon the property embraced in said map; and further that the present covenants on the part of the party of the second part shall run with the land intended to be affected thereby and shall enure to the benefit of the parties of the first part and each of them and of their grantees who may at any time own any of the land laid down on said map and may be enforced by any of them by action, injunction or otherwise." In 1893, Albon P. Man having died, Mary E. Man and William Man, the surviving joint tenants, conveyed a part of the tract originally conveyed to them to George A. Blake. This land adjoined that theretofore conveyed to the Richmond Hill Christian Association on the south and was likewise situated on the westerly side of Park street and on the northerly side of Jamaica avenue. This deed also contained a covenant the same in substance and almost identical in language with the Covenant herein before set forth, except that it provided that no dwelling or store should be nearer than ten feet to the line of any street. Defendant is now the owner of a lot on the northwest corner of Park street and Jamaica avenue, which he acquired by various mesne conveyances from Blake. Each of said conveyances were made expressly subject to said cove. Second Department, November, 1911. [Vol. 147. nant of restriction. The Mans conveyed all of the land upon the west side of Park street, between Jamaica avenue and Railroad avenue, the street beyond Myrtle avenue, to various persons by deeds containing similar covenants. Defendant is about to violate said covenant by erecting on his land a building which will not stand back ten feet from the westerly line of Park street. In this action, which was brought to restrain such violation, plaintiff was defeated. The learned court at Special Term held that the covenants above referred to did not inure to plaintiff's benefit, and that she could not enforce the same. In its first conclusion we think that the court erred. It is entirely clear that the restrictive covenants contained in the several deeds above referred to were entered into with the design to carry out a general scheme for the improvement or development of the real property owned by the Mans, and shown on the maps referred to in said deeds as laid out into blocks and lots. In its express language the covenant runs to the Mans "as well for their own use as for each and all persons who may purchase or derive title through or from them to any part of the tracts of land laid down on the aforesaid map," being the map described in said deeds. The fur ther language of the covenant is that it "shall enure to the benefit of the parties of the first part and each of them and of their grantees who may at any time own any of the land laid down on said map and may be enforced by any of them by action, injunction or otherwise." In such case the covenant may be enforced by any of the owners of land shown thereon, upon the theory that there is a mutuality of covenant and consideration which binds each and gives to each the appropriate remedy. (McDougall v. Schneider, 134 App. Div. 208.) "Such covenants are entered into by the grantees for their mutual protection and benefit, and the consideration therefor lies in the fact that the diminution in the value of a lot burdened with restrictions is partly or wholly offset by the enhancement in its value due to similar restrictions upon all the other lots in the same tract." (Korn v. Campbell, 192 N. Y. 490; Silberman v. Uhrlaub, 116 App. Div. 869.) It is true that in the deed to the Richmond Hill Christian Association the covenant forbids the erection of "any dwelling nearer than twenty feet to App. Div.] Second Department, November, 1911. the line" of Park street, and that in the deed to Blake the covenant forbids the erection of "any dwelling or store nearer than ten feet to the line of any street." This variance does not necessarily militate against the view above expressed, for it may well be that as to the corner property which was conveyed to Blake, and might be better adapted to the purposes of a store than a dwelling, such a variance would be in furtherance of a general scheme of improvement rather than otherwise. But defendant interposed as a defense that plaintiff had violated the covenant in the deed under which she claims, in that upon her land was erected a building nearer than twenty feet and in fact within ten feet of the line of Park street, and the court has so found, and that such building consisted of a store and dwelling. In the face of such finding we do not see how plaintiff can recover. There was some evidence that the parties who are the present owners of the land to the north of defendant's property, and between it and Railroad avenue, the whole of which was included in deeds containing the "twenty feet" covenant, had entered into an agreement modifying such covenant, and that thereafter all of said land had been built upon and is now occupied by stores and dwellings built to a point within ten feet of the line of Park street. But defendant did not execute such agreement and is not bound by the terms thereof. In demonstrating the error of the court at Special Term in regard to the force and extent of the covenants in the Man deeds plaintiff has argued herself out of court. If plaintiff is entitled to enforce the covenant in the deed to Blake as against defendant, defendant is also entitled to enforce the covenant in the deed to the Richmond Hill Christian Association against plaintiff. Plaintiff may not ask a court of equity to grant injunctive relief against the violation of the former covenant, while she herself is violating the latter without the consent of one entitled to the benefit thereof. The judgment should be affirmed, with costs. JENKS, P. J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred. Judgment affirmed, with costs. |