Bradley v. Walker

28 Jones & S. 324, 44 N.Y. St. Rep. 213, 22 N.Y. Civ. Proc. R. 1

• Court: The Superior Court of New York City
• Decided: January 29, 1892
• Status: Published

Opinion

By the Court.—Gildersleeve, J.

By a judgment .of the court below, the defendant was enjoined from erecting and maintaining structures in front of his premises, in violation of a covenant agreement entered into by prior owners of this and adjacent property, reserving a space of eight feet in front of the street line.

The questions of law involved in this case, and requiring consideration for its proper determination, were all substantially decided by a former general term of this court, on an appeal from the order vacating the injunction granted at the inception of the action. See Bradley v. Walker, opinion by McAdam, J., N. Y. Supp., vol. 14, p. 315.

In the above mentioned opinion, the question of the defendant’s notice of the agreement is not fully discussed; and the claim of his learned counsel that, on the former appeal, it was assumed that the defendant purchased the premises with notice, is not without some foundation. We nowproposeto discuss this question, and also give attention to the alleged error in granting plaintiff an allowance of $250. We hold the former general term opinion to be decisive of all other material matters herein.

Whoever purchases real estate with notice of any equity attaching to it, buys subject to that equity. He must conform to the mode of occupation and use of the estate, however restricted, that was enjoined upon or attached to his grantor. Bradley v. Walker, supra, and authorities there cited. The notice may be implied from circumstances. In Tallmage v. East River Bank, 2 Duer, 614, affirmed 26 N. Y., 105, the court held That the uniformity of the position of all the houses on St. Mark’s Place was probably sufficient alone to put the defendant on inquiry.” See also Maxwell v. East River Bank, 3 Bosw., 124; Perkins v. Coddington, 4 Rob., 647; Greene v. Creighton, 7 R. I., 1.

The house in question and the adjoining houses in the same block are actually set back eight feet from the line and have remained so for many years. The large open space thus allowed in front of these houses is not usual in the city of New York, and is of itself a circumstance that might well put the purchaser on inquiry. In Tallmage v. East River Bank, supra, the notice was not wholly by implication. There was testimony in the case that justified a finding of actual notice. Nevertheless, the case is authority in support of the doctrine for which we here contend. But in the case at bar, the fact of the notice does not rest upon an implication from circumstances above set forth.

The covenant agreement under consideration here was regularly recorded, and this in and by itself was notice. This court, in Kendall v. Neebuhr, 45 Super. Ct., 542, Freedman, J., writing the opinion, affirmed at general term, 46 Super. Ct. R., 544, held that “ a mortgagee employing an attorney to make searches, prepare releases, etc., is chargeable with knowledge of a recorded conveyance, though the fact was not communicated to him by the attorney. The presumption is that the attorney found the record in discharge of his professional duty, and the presumption becomes conclusive by the attorney’s omission to testify to the contrary, when called as a witness.” In the case at bar, the defendant’s attorney was present and conducted the trial, but remained mute on this point. Notice to an attorney in the investigation of a title is notice to his client. See Griffith v. Griffith, 9 Paige, 315; Weeks on Attorneys, p. 407, § 237. Purchasers must be deemed to know every fact disclosed by the instruments of record affecting the property purchased; and the fact of such purchasers not having actual notice will not relieve them from obligations imposed by said instruments. A purchaser must be presumed to examine every recorded deed or instrument forming a part of it. See Acer v. Westcott, 46 N. Y., 384; McPherson v. Rollins, 107 Ib., 322.

If it is held that the agreement was not properly recorded as to defendant’s grantor, Mrs. Alvord, on account of her defective acknowledgment, inasmuch as it was properly recorded as to the other parties to the agreement, the defendant could not in law see a part without the whole, and he would thereby have actual notice through his attorney, who searched the title. See 2 Pomeroy’s Eq. Juris., pp. 16, 17, 92.

With regard to the granting of an extra allowance of 1250, we think the court below fell into error.

Subdivison 2 of section 3253 of the Code provides that an extra allowance may be given “ in any other case ” (other than an action to foreclose a mortgage) “ specified in this section, a sum not exceeding five percentum upon the sum recovered, or claimed, or the value of the subject matter involved.”

In the case at bar, there is no evidence of the value of the subject-matter involved, and no sum recovered beyond the costs and extra allowance ; while the amount claimed as damages is one thousand dollars, five percentum of which would be less than the $250 granted as extra allowance by the court below. Thus, in any view of the case, the granting of the extra allowance of $250 was improper.

Where the subject matter involved is not capable of a money value, or the value is not shown, an allowance is not authorized. See Conaughty v. Saratoga Co. Bank, 92 N. Y., 401; People v. Alb. & Sus. R. R. Co., 5 Lans., 25; Coates v. Goddard, 34 Super. Ct., 118; Monroe v. Smith, 23 Abb. N. C., 275.

This error, however, is one that can be remedied, without reversing the judgment, which, in all other respects, is fully warranted.

We are of the opinion that the judgment must be modified by deducting therefrom the sum of $250 ; and, as thus modified, the judgment appealed from is affirmed, with costs.

Freedman, P. J., concurred.