Sanders v. Fenimore Realty Corp.

261 A.D. 842, 24 N.Y.S.2d 915, 1941 N.Y. App. Div. LEXIS 7721

Opinion

— • In an action to enforce an alleged restrictive covenant concerning real property, defendant appeals from an order (a) granting plaintiff’s motion for a temporary injunction, and (b) denying defendant’s cross-motion to dismiss the complaint for insufficiency. Order reversed on the law, with ten dollars costs and disbursements, plaintiff’s motion denied, without costs, and defendant’s cross-motion to dismiss the complaint granted, without costs. A private garage of today is not a stable within the purview of a restrictive covenant executed in 1856. (Goldstein v. Hirsh, 108 Misc. 294; affd., sub nom. Goldstein v. Rosenberg, 191 App. Div. 492; affd., 232 N. Y. 535.) Perpall v. Gload (116 Misc. 571; affd., 203 App. Div. 871), on which plaintiff relies, in so far as it may be in conflict with the Goldstein case (supra), should not be followed. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.