Premium Point Park Ass'n v. Polar Bar, Inc.

282 A.D. 735, 122 N.Y.S.2d 425, 1953 N.Y. App. Div. LEXIS 4828

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 1953
• Status: Published

Opinion

Defendants appeal from a judgment (1) decreeing that the use of land owned by defendant Polar Bar, Inc., for the parking of automobiles, as an adjunct to its refreshment stand, violates a restrictive covenant against the use of the land for a “ commercial garage, or automobile parking lot”, and (2) enjoining such use. The business of defendant Polar Bar, Inc., that of selling “soft ice cream products”, is not prohibited, either by the restrictive covenants or the zoning ordinance of the city of New Rochelle. Judgment reversed on the law, with costs and complaint dismissed, with costs. The findings of fact contained in the decision of the court at Special Term are affirmed. Restrictive covenants must be construed strictly against those seeking to enforce them, and when the language used is reasonably capable of two constructions, the one that limits rather than the one that extends the restriction should be adopted. (Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242, 249; Sehoonmalcer v. Hechscher, 171 App. Div. 148, 151, affd. 218 N. Y. 722.) So construed, it is our opinion that the restriction does not prohibit the proposed use of the property, where the parking space for automobiles will be provided only as an incident to the operation of a permissible business. Nolan, P. J., Carswell, MaeCrate, Schmidt and Beldock, JJ., concur.