(87 App. Div. 375.)

#### GEBHARD v. ADDISON.

(Supreme Court, Appellate Division, First Department.

November 13, 1903.)

1. Easements—Deeds—Restrictive Covenants.

The owner of half of a city block conveyed a portion thereof, the deed containing a covenant restricting the erection of buildings within a certain distance to the street; and, after the erection of buildings in accordance with such covenant, the vendor again acquired the property by foreclosure of mortgage thereon, and conveyed the same without any restrictive covenants, the grantee soon thereafter reconveying. Conveyances of portions of the block were made from time to time, containing restrictive covenants, and the conveyance to plaintiff was subject to restrictive covenants similar to those incorporated in the other deeds. Subsequently the owner conveyed all of the block which he then owned, without restrictive covenants, and later released the premises owned by plaintiff from the covenants in the deed thereto. *Held,*that.plaintiff’s premises were not subject to any easement in favor of the other premises in the block, restricting the construction of buildings thereon in accordance with the requirements of the covenants in the other deeds.

Submitted controversy between Cora Gebhard and John Addison. Judgment for plaintiff.

The plaintiff demands a decree for a specific performance of a contract by which she agreed to sell and convey to the defendant a parcel of land on the southerly side of 103d street, between Park and Lexington avenues, having a frontage of 146 feet and 6 inches, commencing 158 feet 6 inches easterly of Park avenue, in fee absolute, free from all incumbrances, and by which the defendant agreed to purchase the same for the consideration therein specified. The defendant. refused to perform the contract upon the ground that the premises are burdened by restrictive clauses in deeds of adjacent premises, and by an equitable easement in favor of adjacent premises, which prevent their being built upon within 6 feet of the street line. The premises in question are vacant lots, and have- never been built upon. In 1865 William H. Gebhard, the plaintiff’s husband, acquired title to all the northerly half of this block, except 50 feet frontage next easterly of the premises in question, and he acquired title to this in 1886. In 1877 he conveyed to Charles Dundas all the frontage west of the premises in question, and the deed contained a restrictive covenant against buildings not of stone or brick, with slate or metal roofs, within 40 feet of the front of the lot, and against certain specified business uses of the premises, and provided that all buildings to be erected should be set back on a uniform line from the street. The purchaser erected 11 houses, covering the entire plot, known as “three-story, high-stoop houses,” on a uniform line, set back a trifle over 6 feet from the street. In 1878 the plaintiff’s husband, on a foreclosure of the purchase-money mortgage, again acquired title to these premises, after the houses were erected thereon; and in 1883 he conveyed the same, without any re*419strictive covenants, to Charles Bailey, who, by a similar deed, within a few days thereafter reconveyed the same to him. On the 8th day of May, 1886, the plaintiff’s husband conveyed one of these houses and lots, having frojitage of 16 feet, and lying 64 feet east of Park avenue, to Cecilia Hess; and thé deed contained a restrictive covenant against the erection of any building other than a private residence, and that the front line of the building should remain as then established. At the time of making this conveyance the grantor owned all the other land in the block fronting on 103d street, except the 50 feet adjoining the premises in question in this litigation, and these he acquired on the 27th day of May, 1886. In 1891 he conveyed all the lots fronting on 103d street between the premises in question and Lexington avenue, and this deed contained a restrictive covenant against the erection of any building thereon other than a Protestant church or a private house, and against the erection of any building within 6 feet of 103d street. , A Protestant church was built upon these premises, which, in the main, set back 6 feet from the street, but for the distance of about 25 feet next Lexington avenue it extended to within 3% feet of the street line. In 1892 the plaintiff’s husband, she joining with him in the deed, conveyed the premises in question in this litigation to Charles Bailey, who immediately reconveyed them to the plaintiff. The deed recited that the grantee, his heirs and assigns, covenanted with the plaintiff’s husband, his heirs and assigns, against the erection of any building, other than private dwelling houses, or single flats arranged to be occupied by one family on each floor, having a width of not more than 18 feet 6 inches, set back 6 feet from the street, and that no obstruction or building, except necessary steps, platform, or railing, and stone or iron fences, should be erected within this courtyard space, and provided that “this covenant shall run with the lands and be enforceable by the party of the first part, his heirs or assigns, against any person who shall hereafter own the said premises or any portion thereof.’’ The conveyance to plaintiff was made subject to the restrictions contained in the deed to Bailey. In 1895 plaintiff’s husband conveyed, without restrictive covenants, the 10 remaining lots, lying westerly of the premises in question. Pursuant to the contract under which these premises were sold and conveyed, he executed an agreement under his hand and seal to the effect that no building or structure, other than dwellings to be occupied by one family, should be erected upon the premises in question within two years succeeding the 12th day of February, 1896, and that the property should not during said time be used for any other purpose, under penalty of bis paying liquidated damages in the sum of $10,000. These were the only premises fronting on 103d street which the plaintiff then owned in the block, and she has not since acquired any other title. In the year 1896, plaintiff’s husband, under his hand and seal, executed and delivered to her a release, which has been fully recorded, releasing the premises in question from the restrictive covenants, and it recites that the parties had mutually agreed to release the premises from the same. These are the only material facts bearing upon the questions presented.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

John M. Bowers, for plaintiff.

Abram I. Elkus, for defendant.

LAUGHLIN, J.

We are of the opinion that the premises in question are not subject to either a legal or equitable easement in favor of any of the other premises in the block. In the conveyances which were made by the former owner of the premises in question, imposing restrictions, there was no mutual covenant on his part to similarly restrict his remaining lands. His grantees therefore obtain no easement by virtue of the deeds. Equitable Life Assur. Soc. v. Brennan, 148 N. Y. 661, 43 N. E. 173. The question is one of intention, and the presumption is that the restrictions were inserted for the pro*420tection of the grantor, to whom all the covenants ran, excepting only the covenant in the deed of the premises in question, which also runs* with the land. Post et al. v. Weil et al., 115 N. Y. 361, 22 N. E. 145, 5 L. R. A. 422, 12 Am. St. Rep. 809. The restrictions contained in his first deed of the premises lying between those in question and Park avenue, requiring that they should be built upon a uniform line, were made for his own benefit, as the owner of all the remaining frontage on 103d street in that block, except 50 feet; and, when he subsequently obtained title to these premises again, these covenants merged in the common ownership. Post et al. v. Weil et al., supra. When he conveyed the property to the east, where the church has been erected, he imposed the restriction for the benefit of the premises and other adjacent lands, the title to which was then in him. So, when he conveyed the single house and lot, he still retained the ownership of houses and lots on either side, and the restriction was imposed for the benefit of those lands. Likewise, when he came to convey the premises in question, he still owned the 10 houses and lots to the west, and he took a mortgage back, and the restriction was imposed for his own benefit, as such owner of remaining land. This is borne out by the fact that when he came to convey these houses and lots, the last property to which he held title, he conveyed without restriction, and made no attempt to assign his interest in the restrictive covenants to his grantee; but on the contract, as clearly showing that the restriction in his deed of the premises in question was not intended to inure to the benefit of his subsequent grantee of the houses and lots, he entered into an independent agreement with such grantee, covenanting that no building should be erected upon the premises in question, within six feet of the street, during the succeeding two years. His grantee of the premises in question, having conveyed to the plaintiff, had no other interest therein. The plaintiff’s husband then, having no further interest in any of these premises, except his mortgage on the premises in question, and no one else being interested in the premises in question, excepting the plaintiff, executed the release to her, which recites their mutual agreement to release the land from the restrictive covenants contained in his deed. Thus every act of the plaintiff’s husband, as disclosed by this record, is consistent with his having imposed these restrictions for his own benefit, on account of his ownership of remaining adjacent lands. There is no evidence of any representations. There is no evidence tending to establish a uniform plan of restriction, designed to include the premises in question. Equitable Life Assur. Soc. v. Brennan, supra. There is nothing in the surrounding circumstances from which it may fairly be inferred that the other-grantees of the plaintiff’s husband of other lands in the block have any rights with reference to the use or occupation of the premises in question.

The owners of the other parcels in the block fronting on 103d street are not before us, and no decision can be made binding upon them. The defendant should not be required to complete his purchase if he will incur any hazard in so doing. We think it appears reasonably certain that no action can be successfully maintained by any adjacent owner to restrict the use of the premises in ques*421tion on account of any of these restrictive covenants, or any implied covenant of a similar nature.

It follows, therefore, that the plaintiff should have judgment for specific performance of the contract according to the prayer of the submission. All concur.