Rhoades v. Card

44 N.Y.S. 621

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 9, 1897
• Status: Published

Opinion

O’BRIEN, J.

The plaintiffs do not care whether the premises are sold with or without the restrictions, because in either event they are protected by the stipulations, which insure their getting the full amount of their lien, together with the expenses incident to collection. The controversy is therefore confined between Mrs. Card and Regester. The former’s interest is to have the restrictions remain, because her covenant was that there should not be erected upon the Seventieth street property any buildings but private dwellings for a period of 20 years, and a violation of such covenant, even without her fault, might subject her to damages. On the other hand, Regester insists that, as the covenant was entered into subsequent to the mortgage, he has the right to have the property sold in accordance with its terms and conditions, and that a sale subject to the restrictions would diminish the market value of the property 25 per cent. It is conceded that Regester bought the property subject to the restrictions, and there is no reason why he should get the enhanced price which the property would bring freed from the restrictions, at the expense of Mrs. Card. Regester’s .assignor, having purchased the premises subject to the restrictions, and paid for them accordingly, is, in effect, asking the court to make a better bargain for him than he did for himself. The order does not change the position of Regester, but its reversal might seriously affect Mrs. Card. The rule which upon such facts should control is stated in Rector, etc., of Christ Church v. Mack, 93 N. Y. 488. It there appeared, as here, that subsequent to a mortgage a restriction had been imposed upon the property. At the request of a subsequent purchaser, the mortgagee foreclosed; and, no one seeking to preserve the restriction, the defendant Mack, at the sale, became the purchaser of the premises unincumbered thereby. The plaintiff then brought an action for an injunction to restrain a violation of the restriction; and after refusing the relief the court said:

“The plaintiff should not have waited until the sale. When brought into court as a defendant, and certain to be bound by the decree, it should have sought to modify the decree; and showing the peril of its easement, and offering to bid the full amount of the mortgage debt and costs upon a sale subject to the servitude, it should have asked that the sale should be so made. The mortgagee could not object, since bis debt would be paid in full, and be bad’no greater right; and Mrs. Mack [the party seeking the removal of the restriction] could have asserted no equity to have the sale so made as to free her from the easement.”

It is true that these views, as affecting the question in that case,. were obiter dicta; but, regarded merely as a suggestion of the practice to be followed and of the view to be taken upon the precise question here presented, they commend themselves to our judgment, and. we adopt them, as equitable and just.

The order should be affirmed, with $10 costs and disbursements^ All concur.