La Montagne v. Noramy Realty Corp.

268 A.D. 1056, 52 N.Y.S.2d 309, 1945 N.Y. App. Div. LEXIS 5475

Opinion

Action for a declaratory judgment that a certain restrictive covenant is no longer effective, and to compel specific performance of a contract to purchase the two acres of land upon which the restriction was imposed by deed in 1896. Order denying defendant’s motion to dismiss the complaint as insufficient reversed on the law, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within ten days from the entry of the order hereon. The contract made no mention of the restrictive covenant. The complaint contains no allegation that the covenant was intended to be purely personal to the grantor who imposed it in 1896. Nor is it alleged that that grantor or his heirs retained no neighboring lands when the contract in the instant case was made. The allegations of paragraph “ IN ” do not preclude the possibility that the covenant was imposed for the benefit of the grantor’s remaining lands. (Smith v. Terrell, 268 App. Div. 885.) Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.