Mairs v. Stevens

268 A.D. 922, 51 N.Y.S.2d 286, 1944 N.Y. App. Div. LEXIS 4261

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1944
• Status: Published

Opinion

—Plaintiffs have recovered a judgment perpetually enjoining and restraining defendants from the construction of a highway across a lot owned by the defendants, upon the ground that such a road is a violation of a restrictive covenant contained in the deed to the premises. Judgment reversed on the law, with costs, and judgment directed in favor of the defendants dismissing the complaint, with costs. The restriction involved herein prohibits the erection or maintenance “ on any part of the premises herein conveyed any buildings other than dwelling houses for one family * * * and * * * not more than one dwelling house shall be erected on any one lot 6 * (Emphasis supplied.) A highway is not a building, and its construction is therefore not a violation of the restrictive covenant. Neither is it a business, within the provisions of the covenant against nuisances. Findings of fact numbered 12, 18, 19, 21, 22, 23 and 24, and conclusions of law numbered 2, 3, 4, 5 and 6 are reversed and disallowed. In addition to the findings made by the trial court upon defendants Stevens et al., as successor trustees, requests to find, proposed findings of fact numbered 16, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29 and 30, and proposed conclusions of law numbered 1, 2, 3 and 4 are found and allowed. In addition to the findings made by the trial court upon defendant Kelly’s and Lombardi’s requests to find, proposed findings of fact numbered 10, 11, 12 and 13, and proposed conclusions of law numbered 3, 4 and 5 are found and allowed. Settle order on notice. Close, P. J., Hagarty, Carswell, Adel and Lewis, JJ., concur.