Patterson, J. :
The learned judge at Special Term based his decision in this cause upon what was held by the Court of Appeals in the case of Amerman v. Deane (132 N. Y. 355). If the facts, as they appear in [462]*462this record, were identical with those, in the case cited, the same rule of construction of the covenant, restricting the whole block of ground mentioned in the complaint, and settling the rights of the parties, would necessarily have to be adopted in this suit. It was held in the Amerman case, with reference to a lot located ujion the same block of ground as that owned by the plaintiff, that the covenant contained in the various conveyances made by Brown, the original owner, was one running with the land, and that a grantee of one of the lots might maintain an action for breach of the covenant against the use for an interdicted purpose by another grantee of land from the same common source of title; and that, while under the peculiar circumstances of the case an injunction against such use would not be issued, the action might be maintained in a court of equity and damages awarded for breach of the covenant, upon condition that the covenant be released by the plaintiff in favor of the defendant. The general principle of law asserted in the Amerman case was not modified by the subsequent decision of the Court of Appeals in the case of The Equitable Gas Light Co. v. Brennan (148 N. Y. 661). That case was decided upon certain facts appearing upon the record, and on those facts it was held that there was no intention of the original grantor, either expressed or to be implied, to place-a restriction upon the easterly half of the block of land therein involved. The Amermcm case and the Equitable Gas Light Company case were both decided upon special facts, and they are not in conflict with each other. But, as this case now comes before us, the question presented is radically different from that which was before the Court of Appeals in the Amerman case. The original covenant made by Brown was, among other things, distinctly, that the covenantor, his heirs and assigns, would not, at any time thereafter, erect, cause, permit, or suffer to be erected, “ any tenement house,” etc. That covenant was modified by the plaintiff’s predecessor in title, by an agreement with the executors of' Brown; and in the deed, by which the plaintiff’s premises were conveyed to her, it is recited that those premises are subject to a covenant against nuisances, as modified by an agreement dated the 29th of February, 1884. That modification, which applied also to the premises belonging to the defendants (they being grantees and assigns of Brown, and the [463]*463covenant having been made in favor of the assigns as well as the executors of Brown), reads as follows: “ Nor any tenement house, not meaning, however, what is Tcnown as aflat or apartment house, provided they Toe equal in class to No. 336 West éTlth street, or to No. 346 West 47th street.” As the covenant originally stood, it was a covenant against use and not against construction. That was specifically pointed out in the opinion of the Court of Appeals in the Amerman case, where it is said that “ the plaintiff’s damages depended not upon the construction of the building, but the use made of it.” The modification changed the covenant to one against construction and not against use, for by that modification a flat house or an apartment house was excluded from the operation of the covenant; and more than that, a standard of construction was set up by the modification, namely, that of the class of building known as No. 336 West Eorty-seventh street or No. 346 West Forty-seventh street. If buildings to be constructed by grantees of land on the block in question were equal in class to the houses mentioned in Forty-seventh street, there would be no violation of the covenant. It certainly was the intention of the parties to fix a standard of building that might be erected, and if structures built upon this block conformed to that standard, any use to which the buildings in Forty-seventh street might be put from time to time, at the caprice of their owners, could not affect the nature of the covenant relating to the premises in question. This modification did not create a merely personal covenant with the executors of Clarence Brown or one for the benefit of the grantors. It might be susceptible of that construction, were it not that the instrument by which the modification was made specifically states that it was understood and agreed between the parties that the covenant should run with the land. That was an agreement signed not only by the plaintiff’s predecessor in title, but by various other owners, thus indicating that the modified covenant was to bear the same relation to the whole block as the original covenant did before it was changed. It thus results that when the conveyance was made to Bertha Deane of the property on the southeast corner of the block, that property was burdened with a restriction in favor of this plaintiff and of other lot owners on the block, against the construction of a house which should not be equal in class to either of the two .designated houses [464]*464in Forty-seventh street, and the breach of that covenant for which the defendants in this action would be liable, would be the construction of a building not equal in class to either of the houses on Forty-seventh street referred to. The learned judge in the court below, in his decision of this case, did not consider it with respect to the real effect of the changed aspect of the covenant. While he alludes in his opinion to that change, he merely comments upon it with reference to its not destroying the mutuality of the covenant. He held that the change in the covenant, in order to defeat the plaintiff’s right of action, must be of such a character as to render it no longer mutual, and that the facts disclosed in evidence did not authorize the defendants to put up the tenement house which they did erect on Sixty-fourth street; and he seems to have regarded the case made as only involving the right of the defendants to set up changed conditions in the neighborhood as a reason that would render the enforcement of the restriction inequitable.
We think, therefore, that the case was not disposed of in the court below upon the proper construction of the covenant nor upon evidence with respect to the real character or class of building that was put up by Mrs. Deane under the modified covenant. There is some obscurity in the testimony relating to the class of buildings in which either of the two houses in Forty-seventh street would be included; or as to whether there is a particular designated class to which they belong or could be assigned. Mr. Hawes, one of the witnesses for the plaintiff, states that they are third-class flat houses. Mr. Deane, the husband of the defendant Deane, and who attended to the construction of her buildings in Sixty-fourth street, testifies that they were equal in character and class to those in Forty-seventh street; that they cost more to build; that they were built of excellent material, and that, as he designed them, the apartments contained in the houses were to be for the accommodation of two families on a floor only, which was the same character of construction, with reference to intended use, as that of the two houses in Forty-seventh street. There is some slight conflict in the evidence with respect to the correspondence, or want of correspondence, of the defendants’ property, as now used,
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Patterson, J. :
The learned judge at Special Term based his decision in this cause upon what was held by the Court of Appeals in the case of Amerman v. Deane (132 N. Y. 355). If the facts, as they appear in [462]*462this record, were identical with those, in the case cited, the same rule of construction of the covenant, restricting the whole block of ground mentioned in the complaint, and settling the rights of the parties, would necessarily have to be adopted in this suit. It was held in the Amerman case, with reference to a lot located ujion the same block of ground as that owned by the plaintiff, that the covenant contained in the various conveyances made by Brown, the original owner, was one running with the land, and that a grantee of one of the lots might maintain an action for breach of the covenant against the use for an interdicted purpose by another grantee of land from the same common source of title; and that, while under the peculiar circumstances of the case an injunction against such use would not be issued, the action might be maintained in a court of equity and damages awarded for breach of the covenant, upon condition that the covenant be released by the plaintiff in favor of the defendant. The general principle of law asserted in the Amerman case was not modified by the subsequent decision of the Court of Appeals in the case of The Equitable Gas Light Co. v. Brennan (148 N. Y. 661). That case was decided upon certain facts appearing upon the record, and on those facts it was held that there was no intention of the original grantor, either expressed or to be implied, to place-a restriction upon the easterly half of the block of land therein involved. The Amermcm case and the Equitable Gas Light Company case were both decided upon special facts, and they are not in conflict with each other. But, as this case now comes before us, the question presented is radically different from that which was before the Court of Appeals in the Amerman case. The original covenant made by Brown was, among other things, distinctly, that the covenantor, his heirs and assigns, would not, at any time thereafter, erect, cause, permit, or suffer to be erected, “ any tenement house,” etc. That covenant was modified by the plaintiff’s predecessor in title, by an agreement with the executors of' Brown; and in the deed, by which the plaintiff’s premises were conveyed to her, it is recited that those premises are subject to a covenant against nuisances, as modified by an agreement dated the 29th of February, 1884. That modification, which applied also to the premises belonging to the defendants (they being grantees and assigns of Brown, and the [463]*463covenant having been made in favor of the assigns as well as the executors of Brown), reads as follows: “ Nor any tenement house, not meaning, however, what is Tcnown as aflat or apartment house, provided they Toe equal in class to No. 336 West éTlth street, or to No. 346 West 47th street.” As the covenant originally stood, it was a covenant against use and not against construction. That was specifically pointed out in the opinion of the Court of Appeals in the Amerman case, where it is said that “ the plaintiff’s damages depended not upon the construction of the building, but the use made of it.” The modification changed the covenant to one against construction and not against use, for by that modification a flat house or an apartment house was excluded from the operation of the covenant; and more than that, a standard of construction was set up by the modification, namely, that of the class of building known as No. 336 West Eorty-seventh street or No. 346 West Forty-seventh street. If buildings to be constructed by grantees of land on the block in question were equal in class to the houses mentioned in Forty-seventh street, there would be no violation of the covenant. It certainly was the intention of the parties to fix a standard of building that might be erected, and if structures built upon this block conformed to that standard, any use to which the buildings in Forty-seventh street might be put from time to time, at the caprice of their owners, could not affect the nature of the covenant relating to the premises in question. This modification did not create a merely personal covenant with the executors of Clarence Brown or one for the benefit of the grantors. It might be susceptible of that construction, were it not that the instrument by which the modification was made specifically states that it was understood and agreed between the parties that the covenant should run with the land. That was an agreement signed not only by the plaintiff’s predecessor in title, but by various other owners, thus indicating that the modified covenant was to bear the same relation to the whole block as the original covenant did before it was changed. It thus results that when the conveyance was made to Bertha Deane of the property on the southeast corner of the block, that property was burdened with a restriction in favor of this plaintiff and of other lot owners on the block, against the construction of a house which should not be equal in class to either of the two .designated houses [464]*464in Forty-seventh street, and the breach of that covenant for which the defendants in this action would be liable, would be the construction of a building not equal in class to either of the houses on Forty-seventh street referred to. The learned judge in the court below, in his decision of this case, did not consider it with respect to the real effect of the changed aspect of the covenant. While he alludes in his opinion to that change, he merely comments upon it with reference to its not destroying the mutuality of the covenant. He held that the change in the covenant, in order to defeat the plaintiff’s right of action, must be of such a character as to render it no longer mutual, and that the facts disclosed in evidence did not authorize the defendants to put up the tenement house which they did erect on Sixty-fourth street; and he seems to have regarded the case made as only involving the right of the defendants to set up changed conditions in the neighborhood as a reason that would render the enforcement of the restriction inequitable.
We think, therefore, that the case was not disposed of in the court below upon the proper construction of the covenant nor upon evidence with respect to the real character or class of building that was put up by Mrs. Deane under the modified covenant. There is some obscurity in the testimony relating to the class of buildings in which either of the two houses in Forty-seventh street would be included; or as to whether there is a particular designated class to which they belong or could be assigned. Mr. Hawes, one of the witnesses for the plaintiff, states that they are third-class flat houses. Mr. Deane, the husband of the defendant Deane, and who attended to the construction of her buildings in Sixty-fourth street, testifies that they were equal in character and class to those in Forty-seventh street; that they cost more to build; that they were built of excellent material, and that, as he designed them, the apartments contained in the houses were to be for the accommodation of two families on a floor only, which was the same character of construction, with reference to intended use, as that of the two houses in Forty-seventh street. There is some slight conflict in the evidence with respect to the correspondence, or want of correspondence, of the defendants’ property, as now used, with the two houses in Forty-seventh street, but the testimony of Deane is substantially uncontradicted with reference to the original construction of the defendants’ houses. [465]*465The whole of the case upon this subject is altogether unsatisfactory, and was evidently not determined with reference to the effect of the changed conditions of the covenant, hut substantially as if the modification of the covenant had made no alteration in the rights or obligations of any of the parties, and as if the interdiction upon building a tenement house still remained as applicable to any kind of tenement house that could be called a flat or apartment house.
We think the proper interpretation of the change in the covenant is as we have stated, and that the subject of the construction of the defendants’ houses relatively to their correspondence with the houses, or either of them, in Forty-seventh street, presents the material issue in the case, and the one upon which it should have been decided, and that if it shall be found that when the buildings were constructed they were in substantial correspondence with either of the houses in Forty-seventh street, there is no actionable breach of the covenant, but that if they were inferior or not equal in class, as that word may be defined, to either of the Forty-seventh street houses, there is an actionable breach of the covenant.
The case was not decided on that question and, therefore, we are of the opinion that the judgment should be reversed and a new trial ordered, with costs of the action to the appellants to abide the event.
Van Brunt, P. J., and O’Brien, J., concurred; Williams, J., dissented.