New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1919-02-23

The Court of Appeals has ust decided
that g covenant on land must be OBJ
served, and that it is enforcibie by the
owners OF property affected py the
same restriction. Some have MAIN
tanned that a covenant IS destroyed
with the removal Of the first building
10 be erected on property restricted.
This interesting question came to
the court for decision through the use
Of a dwelling on Riverside Drive in the
block between Seventy and Sew
enty-third Streets as maternity nos
pital. Owners of dwellings IN the
block called the attention of the Wa
terside LLand Corporation to the fact,
that in leasing the property for hos
pital use it was breaking the covenant
covering the Riverside Drive block
front and limiting its use for resi-
Dental purposes only. The owner
thought differently about the matter
and refused to vacate the lease made
to Dr. William II. Wellington hnipe-
The other owners took the matter to
court. The special terms court up
held them, but the Appellate Division
reversed the decision and said that
the defendants, the property owners
and the maternity doctor could use
the property as they desired.
Now the Court of Appeals, after
having heard the argument OF Herbert
Mckennis, who represented the al
differently
What a Covenant Is
"The covenant" says the court, sis
not merely to build structure adapt
ed for a given use. The covenant Is
that the structure, when built, shall
be restricted to that use. 1t shall
be used only as @ private residence,
and a private residence for one fam
ily.' This is more than a Limitation
upon construction 1t is restriction
Of enjoyment
"The argument is made that the re-
stricton is futile, and that equity
should refuse to enforce it because OF
its futility We are told that an owner
may tear the dwelling down, and that
nothing in the covenant will restrict
the building to be substituted If the
premise be assumed, the conclusion of
futility does not follow. Restrictions
upon the form or the use of the first
building to be constructed are>common
in conveyances. They do not become
worthless because second building
may be different. Owners of land
know that buildings are put up to be
used They are not put UP to be de
stroyed To fix their character at the
beginning may shape the future or the
eighborhood. We do not refuse to
enforce a covenant while it lasts, be-
cause it may not last forever. Limita-
tions are not illusorv because they are
not complete The burden clings to the
land till the building loses its identity.
Breach of Restriction
eve cannot doubt that the attempted
use is a breach of the restriction. The
lease provides that the building shall
be occupied as a sanatorlum and not
otherwise BY no stretch of language
can we say that this is equivalent to
use as private residence for one
family"
The restriction was placed on the
properly twenty-Jhree years ago by
John S. Sutphen, who laid out the hiocE
in lots for sale to those who desired
sites on Riverside Drive for fine homes
The covenant required the development
of the property purchased within two
years after sale contracts were signed,
with dwellings each for one family
only. Mr.. Sutohen having seen the