Bird v. Salt Hill Corp.

Appellate Division of the Supreme Court of New York

Bird v. Salt Hill Corp.

282 A.D. 1047, 126 N.Y.S.2d 125, 1953 N.Y. App. Div. LEXIS 5783

Appellate Division of the Supreme Court of the State of New York·Decided December 7, 1953·Published·Cited by 5 cases

Opinion

Appeal by defendants Salt Hill Corporation and Nelson, its president, from a judgment enjoining them from using certain real property owned by the corporate defendant for business purposes, including a commercial airport and a “ Farmers’ Market and County Fair.” Judgment affirmed, with costs. We are of opinion that the trial court correctly found that appellants, prior to and at the time of the taking of title to said premises, had notice of the restrictive covenant in question. The abstract of title which they employed in connection with the taking of title indicated the presence of restrictive covenants. That should have suggested an inquiry which, if diligently prosecuted, would have disclosed the covenant (see Williamson v.. Brown, 15 N. Y. 354, 362, 364, and Kingsland v. Fuller, 157 N. Y. 507, 511). Nolan, P. J., Wenzel, MaeCrate and Schmidt, JJ., concur; Adel, J., dissents and votes to reverse the judgment and dismiss the complaint, with the following memorandum: Under the proof in this record it may not be held that the corporate appellant, at the time of taking title, had notice of the restrictive covenant in question. Furthermore, the covenants in the Bird and Julsrud deeds are personal and may not be enforced against the grantors’ assignees. The covenants are not connected with a general plan of development. (Clark v. Devoe, 124 N. Y. 120; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242.)

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Appeal by defendants Salt Hill Corporation and Nelson, its president, from a judgment enjoining them from using certain real property owned by the corporate defendant for business purposes, including a commercial airport and a “ Farmers’ Market and County Fair.” Judgment affirmed, with costs. We are of opinion that the trial court correctly found that appellants, prior to and at the time of the taking of title to said premises, had notice of the restrictive covenant in question. The abstract of title which they employed in connection with the taking of title indicated the presence of restrictive covenants. That should have suggested an inquiry which, if diligently prosecuted, would have disclosed the covenant (see Williamson v.. Brown, 15 N. Y. 354, 362, 364, and Kingsland v. Fuller, 157 N. Y. 507, 511). Nolan, P. J., Wenzel, MaeCrate and Schmidt, JJ., concur; Adel, J., dissents and votes to reverse the judgment and dismiss the complaint, with the following memorandum: Under the proof in this record it may not be held that the corporate appellant, at the time of taking title, had notice of the restrictive covenant in question. Furthermore, the covenants in the Bird and Julsrud deeds are personal and may not be enforced against the grantors’ assignees. The covenants are not connected with a general plan of development. (Clark v. Devoe, 124 N. Y. 120; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242.)

Bird v. Salt Hill Corp., 282 A.D. 1047, 126 N.Y.S.2d 125, 1953 N.Y. App. Div. LEXIS 5783 (N.Y. Ct. App. 1953).

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Opinion

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