Blumberg v. Thomaston-Spruce Corp.

46 A.D.2d 671, 360 N.Y.S.2d 43, 1974 N.Y. App. Div. LEXIS 3902

Opinion

In an action to permanently enjoin defendants from violating certain covenants contained in a 1908 agreement recorded in the then Westchester County Register’s office which restricts the use of certain land located in Aubyn Manor, City of Mount Vernon, defendant Thomaston-Spruce Corp. appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, entered August 8,1973, as granted plaintiffs’ motion for a preliminary injunction to the extent of restraining defendants from violating one of the covenants. Order modified by adding thereto a provision that plaintiffs shall give an undertaking, as provided in CPLR 6312 (subd. [b]), in an amount to be fixed by Special Term after a hearing held for such purpose, unless the parties stipulate to an amount therefor. As so modified, order affirmed insofar as appealed from, without costs. The granting of a preliminary injunction without provision for a suitable undertaking was improper (CPLR 6312; Rockland County Bldrs. Assn. v. MeAlevey, 29 A D 2d 975). Hopkins, Acting P. J., Cohalan, Brennan, Benjamin and Munder, JJ., concur.