#### Harriet R. Rockwell, Plaintiff, *v.*Amalie Utz, Defendant.

(Supreme Court, Westchester Trial Term,

January, 1913.)

Deeds — clause in a deed of conveyance — clause construed as a covenant and not as a condition — breach of covenant to build a sidewalk — ejectment.

Conditions are not favored, by the courts and if it is doubtful whether a clause in a deed of conveyance is a condition or a covenant it will be construed to be a covenant so as to avoid forfeiture, and the grantor left to an action for damages for his breach, though the clause is designated as a condition by the deed.

On payment of their full value plaintiff conveyed two lots to defendant by a deed which contained the following clause: “ Provided always, and this indenture is made upon condition, that the said party of the second, part, her heirs or assigns, shall within two years from the delivery of this deed, build upon each plot of the said premises, a dwelling-house which shall cost not less than" five thousand ($5,000) dollars,” and the defendant built such a dwelling-house on one of the lots within the time limit, in an action of ejectment of defendant from the other lot upon which he did not commence to build until after the commencement of the action, held, that the clause in the deed was not a condition hut a covenant by the grantor to build upon each plot within the time limit "a dwelling-house to cost not less than the stipulated price, and that upon stipulation of the parties a verdict might be directed in favor of defendant upon said cause of action and a verdict for plaintiff for six cents upon the second cause of action alleged in the complaint for defendant’s breach of covenant to build a sidewalk.

*121Stipulation by the parties that the court should direct a verdict reserving its decision.

Clark and Close, for plaintiff.

Frank M. Tichenor, for defendant.

Tompkins, J.

For many years the plaintiff has been the owner of a large tract of land situated at Bronxville, FT. Y., a portion of which the plaintiff has laid out into lots and offered for sale for residential purposes. On July 21, 1904, the plaintiff sold two of these lots to the defendant. The deed contained the following clause: “ Provided always, and this indenture is made upon condition, that the said party of the second part, her heirs or assigns, shall within two years from the delivery of this deed, build upon each plot of the said premises, a dwelling-house which shall cost not less than five thousand ($5,000) dollars.”

The defendant built such a dwelling-house upon one of the lots during the time limited, but did not commence to build a dwelling-house upon the other until after this action was commenced.

The first cause of action set forth in the complaint is for the ejectment of the defendant from the last mentioned lot.

Both causes of action turn upon the question whether the above quoted clause is a condition or a covenant.

Conditions are not favored by the courts because they tend to destroy estates and, if it is doubtful whether a clause is a condition or a covenant, it will be construed to be a covenant, so as to avoid forfeiture and the grantor will be left to an action for damages for its breach, even though the clause may be designated as a condition by the instrument in which it is contained. Post v. Weil, 115 N. Y. 361; Graves v. Deterling, 120 id. 447; Zweig v. Sweedler, 140 App. Div. 319; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. Rep. 701.

In Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 154, the court says: “ The fact that the deed uses the language, *122upon condition, when referring to the conveyance by the grantors, is not conclusive that the intention was to create an estate strictly upon condition. The question is always what was the intention of the parties, and while such intention is to be gathered from the language used, yet its construction may frequently be aided by reference to all the circumstances surrounding the parties at the time of the execution of the deeds, because the court is thus enabled to be placed exactly in their situation, and to view the case in the light of such surroundings.”

From all the circumstances surrounding the execution of the deed here in question it must be held that the above quoted clause is not a condition but a covenant by the grantor to build upon each plot within two years a dwelling-house to cost not less than $5,000. Same cases and Hawley v. Kafitz, 148 Cal. 393; Stone v. Houghton, 139 Mass. 175; Cassidy v. Mason, 171 id. 507.

The premises in question were conveyed to the defendant after payment of their full value by a deed that does not contain a provision for re-entry by the plaintiff, and this case must be distinguished from those in which land was conveyed upon nominal consideration or to public service, religious or social bodies for public or *quasi*public purposes.

The second cause of action is for breach of the covenant to build a sidewalk 500 feet, in length along part of the street frontage of the plot mentioned in the first cause of action.

The plaintiff claims that she is entitled to the reasonable cost of the construction of such a sidewalk. If the property reverted to her for breach of the clause providing for the erection of the house, this would have been the proper measure of damages.. As the plot does not revert to her, the proper measure of damages is the difference between the value of the plaintiff’s remaining land with the sidewalk in question laid in front of the plot in question, and' the value of the plaintiff’s remaining land without such sidewalk laid. Brooklyn Hills Improvement Co. v. New York & Rockaway Beach R. Co., 80 App. Div. 508.

As there has been offered no proof of such damage, the *123court may only assume that the plaintiff has suffered nominal damages.

Under the stipulation the court will direct a verdict in favor of the defendant upon the first cause of action and a verdict in favor of the plaintiff for six cents upon the second cause of action.

Judgment accordingly.