Shuart v. Heidgerd

283 A.D. 895, 129 N.Y.S.2d 907, 1954 N.Y. App. Div. LEXIS 5679

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1954
• Status: Published

Opinion

Submission of a controversy on an agreed statement of facts, pursuant to sections 546-548 of the Civil Practice Act. Plaintiff and defendant entered into a written agreement, whereby plaintiff agreed to purchase about seventy-two acres of vacant real property from the defendant, and defendant agreed to convey such property to plaintiff by a full covenant warranty deed. On the adjourned closing date, defendant tendered such a deed, containing a covenant to the effect that the premises, except a strip about 1,425 feet long by 600 feet deep, “shall be used for residential housing purposes only, which restriction shall be perpetual and run with the land.” Defendant demanded that such covenant be included in a bond and mortgage to be delivered by plaintiff. Plaintiff claims that he is entitled to receive the deed and is required to deliver the bond and mortgage, without such covenant. Defendant claims the covenant should be included in both. The controversy submitted for decision is whether or not specific performance should be decreed in conformity with plaintiff’s claim or with defendant’s claim. On the stipulation of the parties, judgment unanimously directed for plaintiff and against defendant, without costs. Present— Adel, Acting P. J., Wenzel, MacCrate, Beldoek and Murphy, JJ.