Rockaway Hunting Club v. Oakley

160 A.D. 893, 144 N.Y.S. 1142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1913
• Status: Published

Opinion

Thomas, J.:

After the construction of the house upon the defendant’s lot, a stable appurtenant thereto was built in 1898 and was used for a stable during that year. Hinckley, plaintiff’s predecessor in title, knew that the structure was a stable and that it was devoted to that purpose. In 1899 the stable was converted into a living apartment by change of interior arrangement, although there was no apparent change in the exterior. The change was not made through any reliance upon any act or omission of Hinckley or the plaintiff, nor is the plaintiff estopped to maintain this action by passivity on its part or that of its predecessor. The judgment should be reversed, with costs, and judgment entered enjoining the defendant from using the building for the purposes of a living apartment or dwelling house, or for any purpose violative .of the restriction. Jenks, P. J., Carr, Rich and Putnam, JJ., concurred. Judgment reversed, with costs, and judgment ordered for plaintiff, with findings. Order to be settled before Thomas, J.