The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-01-31
PROPERTY OUNERY RIGHTS.
Judge VAN yorsrs Decision In the sherwood
Musgrave suit-roints Involved.

Judge Van NOrst's reasons for Diminishing
the complaint in the suit Of Fannie l.. Musgravc
against John u. Sherwood are exceedingly in
tnrcsting. Mr.. Sherwood owned houses on tho
northeast corner OF Forty fourth strcctand Fifth
avenue. and sold one Of them. 53j Fifth avenue.
in 1879 TO Mrs. Musgravc. Subsequently he
altered the building at the corner of Forty
fourth street into n nrst-class family hotel
building up the space between the Forty fourth
street houses and the Fifth avenue houses and
making one large building. which has been oc-
cupicd since 1875. In the spring Of 1877 he be-
gan to raise the building two stories. and Mrs.
Musgravc sued him and obtained an injunction
from Judge Wcstbrook preventing him from
proceeding until her suit was decided. Before
the Injunction was served the two stories were
erected, nut Mr.. Sherwood has been prevented
until now from putting M the north wall. which
was party wall adjoining Mrs. MussraNcs
house.
Her ground Of complaint was: First-That
the party wall having been completed when
she purchased, Mr. Sherwood had no right 10
put tip any addition.
Scr6nd-That he had. before selling the
house. made representations tQ her thht tho
houses h" retained would not be used except
there furrrstoppcd from making any alterations
TO adapt his building for use MS an apartment
Third-'Ilat the deeds forbid the use of the
premises ~ tenement house.
trial that Mr.. Shrrwood's house was conducted
ns u frst-clnss private hotel and there were no
accommodations Tor separate housekeeping.
Al To the party wall, tho Judge SAYS it has
always been the practice of the courts to be
careful 10 uphold tn" rights OF ndImen, owners.
He uuotcs The language of the decision i'm tho
celebrated case of Brooks agt. Curtis. decided
by the Court OF Appeals. Judge Rappello. in
that citsc. said:
We think that the right Of adjacent owners ~ increase
the height Of purity walls whcnu can be done without
injury 10 the ailonins buildings ani the wall is clearly
sarliN included IN the easement
Judge Van Worst goes on to shy that there IL
no evidence in this case that the proposed adj
diton to the height of the party wall under
consideration will hc an injury Ia the adjoining
building. u il woul 1T be- an injury. Mr.. Sher.
not be- IA INJURY. he should not BE- deprived Of
9i lbs estate, aud, Tor this purpose to
right To do 80 can be- upheld in law and
equity. As To the representations said to have
l.rn made To- the plaintiff and her husband 10y
Mr.. Sherwood before purchase rs to the build
ings in the nelghborhoOd remaining private
residences and free from nuisanccs. reference
+ made 10 the fact that the buildings Of Mr..
Sherwood. subsequent 10 the sale To Mrs. Mus
grave. were altered To- "A hotel. without protest
from her The Judge disc the effect of
such representations. II any such were made
and concludes that Ia be of Importance such
representations must bc of an existing fact. and
that the doctrine OF equitable estoppel does
not apply to promises 10 b." fulfilled in the flu
turr. Tho covenants IN relation To nuisanccs
e..
record. and open 90 the Inspection OF the plain
ulr nt the time she bought. No alleged promises
of Mr. Sherwood could make the deeds differ
cnt from what they were actually, MIR. Shcr-
wood could neither enlarge nor abridgc them
hy verbal Statements In SO iaras Mr. Sherwood
spoke OF those covenants or attempted To put
any construction upon them, he should not in
equity be estopped. because the buyers were
called upon 10 examine the deeds themselves.
There was no reciprocal promise on the part Of
Mrs Musgrnvc to use her building as "A private
dwelling. The rule in law and equity is that
no mere oral stipulation between parties am
terror to or nj the time ~ the execution and de-
livery OF deed cun hc given in evidence to
control, qualify. or enlarge the Liabilities in
As 10 the statements Of her counsel that Mr.
Sh"rwoods promises were made contempQ-
rancous with the deed. the Judge cites the evil
dcnce of Mrs. Musgraye that they were made
last October. and of her husband. that they wcro
made before the written contract WAS executed.
Referring to the principle Of law that the con-
tents of u deed may not be altered. added to. or
varied 10y oral evidence. the Judge II OF opinion
that that principle should not yield in this in
stance 10 lgt IN statements ana promises when
appear 10 nave been casually ana without pre-
meditation volunteered on the OCCASION 81 the
parties inspecting the premises. They do not
appear Ia have been made under circumstances
that would Justify the conclusion that Mr.
Sherwood intended To place himself under last
ing obligation in respect thereto. An under
lak!ng OF 80 important character affecting
which there could bee no mistake.
Windsor Hotel was on the avenue LctSeDn For
ty-siNth and Foriy-sevcnth streets that the ap-
pedrance of business buildings was unmisiaka-
BILE; that boarding. houses were monty from
Iwentv-ninth to Forty-second street. TINT not
far from the plaintiff house WAS livery stable.
butcher shop. saloon. agarnent cleaning cs-
adjustment. and u florists and the Judge does
not think that Mr. Sherwood should be- re-
strained from converting his property to busi-
ness uses.
The Judge discusses the question whether
Mr.. SherwOOd's house was an apartment.
FRENCH fiat or family hotel. or tenement. as
Mrs Musgraye calls 1t. and decides that II Is not
a tenement, but best answers the description
VI family hotel