General Rules of Practice, rule 11.. 609 General Rules of Practice, rule 39.. 646 General Rules of Practice, rule 25.. 595

Cases

DETERMINED IN THE

FIRST DEPARTMENT

IN THE

APPELLATE DIVISION,

April, 1903.*

FREDERICK W. WHITE and FRANCIS B. ROBERT, Plaintiffs, v. THE COLLINS BUILDING AND CONSTRUCTION COMPANY, Defendant.

Restriction against the erection of a tenement house contained in a deed executed in 1873- it does not apply to a modern apartment house — chapter 908 of the Laws of 1867 does not make all buildings within its definition tenement houses.

A deed executed in 1873 contained a covenant by the grantee, his heirs and assigns, that they "will not erect or permit upon any part of said premises any stable of any kind, * * * railroad depot, railroad stable, car, engine or tenement house or any other trade, manufactory, business or calling which may be in any way dangerous, noxious or offensive to the neighboring inhabitants, and that no building shall be erected upon said lands, or any of them, which shall contain any alley or entrance running through them for ingress or egress to rear buildings, and it is declared that this covenant is a lien and runs with said lands and binds the persons seized thereof for the time being." Chapter 908 of the Laws of 1867, regulating the construction of tenement houses, which was in force in 1873, defined a tenement house as any house which is erected, leased or hired to be kept or occupied as a home or residence for more than three families living independent of one another and doing their cooking upon the premises. Suites in a tenement house, as that term was understood in 1873, rented for from six to fifteen dollars a month, according to the number of rooms, and were occupied by people of very limited means.

In 1902 the premises were contracted to be sold to a party who intended to erect thereon a modern apartment house of the highest class, the apartments in which would rent for from $600 to $1,100 a year.

Apartment houses, as that term is now understood, were unknown in 1873.

*The other cases of this term will be found in volume 81 App. Div.— [REP. APP. DIV.-VOL. LXXXII. 1

FIRST DEPARTMENT, APRIL TERM, 1903.

[Vol. 82.

Held, that the apartment house was not a tenement house within the meaning of the restriction contained in the deed;

That it was not the purpose of chapter 908 of the Laws of 1867 to make all buildings that come within its definition of a tenement house tenement houses for all purposes and for all time to come.

VAN BRUNT, P. J., dissented.

SUBMISSION of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

Abram I. Elkus, for the plaintiffs.

Morris H. Hayman, for the defendant.

INGRAHAM, J.:

The plaintiffs entered into a contract with the defendant whereby the plaintiffs, in consideration of $87,500, purchased from the defendant and the defendant agreed to convey to the plaintiffs certain property in the city of New York upon the payment of $87,500. The objection to the title is based upon a covenant in a deed by which the premises in question were conveyed to the plaintiffs' predecessor in title by the executors of Jacob Harsen in the year 1873. That covenant is as follows: "And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said parties of the first part, their successors and assigns, and with the owners for the time being of the adjacent lots, jointly and severally, that neither the said party of the second part, nor his heirs nor assigns, shall or will at any time hereafter erect any buildings within forty feet of the front of said premises, except of brick or stone with roofs of slate or metal, and will not erect or permit upon any part of said premises any stable of any kind, railroad depot, railroad stable, car, engine or tenement house or any other trade, manufactory, business or calling which may be in any way dangerous, noxious or offensive to the neighboring inhabitants, and that no building shall be erected upon said lands, or any of them, which shall contain any alley or entrance running through them for ingress or egress to rear buildings, and it is declared that this covenant is a lien and runs with said lands, and binds the persons seized thereof for the time being."

* *

*

It is stated in the submission that in the agreement of August 12, 1902, by which the defendant agreed to purchase the property it