Schultheis v. Wohlleb

231 A.D. 851, 246 N.Y.S. 485

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1930
• Status: Published

Opinion

Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of the plaintiff, with costs, for the relief sought, to the effect that the restrictive covenants in question will not be enforced against the plaintiff or his successors in title in ease his premises referred to in the complaint should be improved by the erection thereon of a building or buildings containing apartments or stores or both in accordance with the zoning ordinances and the regulations and restrictions of the building department of the city of New York applicable. The evidence submitted in this ease convinces us that since the covenants in question were imposed upon plaintiff’s property in 1906, and particularly since plaintiff purchased his property in 1922, the character of the property on Broadway in the immediate neighborhood has so changed the terms and restrictions of the covenant limiting the use of plaintiff’s property to residential purposes that they are no longer applicable to existing conditions and that the enforcement of the covenant will impose great hardship upon the plaintiff, and be of little benefit to the defendants herein opposing plaintiff’s demands. Findings of fact and conclusions of law contrary to this decision are reversed and new findings and conclusions in support thereof will be made. Young, Rich, Hagarty and" Tompkins, JJ., concur; Lazansky, P. J., not voting. Settle order on notice.