This action was brought to compel the defendant to specifically perform an agreement made by her to purchase the house and lot, No. 19 Washington square, north, in *Page 322 the city of New York, which the plaintiff agreed to sell and convey free and clear of all incumbrances.
The defendant in her answer, among other objections to the title, averred that the former owners of the land in the block in which the house and lot are situated had mutually covenanted and agreed that twelve feet of the front of the lot in question, and of the other lots in the block, should not at any time be built upon, but should forever be left open for court-yards.
That such agreement was in full force and constituted a restriction and incumbrance which depreciated the value of the property. The defendant also, by way of counter-claim alleged that she had sustained damages, because of the inability of plaintiff to give a title free and clear of all incumbrances, consisting of the percentage paid on account of the purchase-price, the auctioneer's fees, and the expenses paid for examining the title.
The plaintiff in his reply admitted the making of the agreement set forth in the answer, but denied that it amounted to an incumbrance or restriction in the proper meaning of the words, or that it impaired the value of the premises.
It is entirely competent for adjoining owners of land by grant to impose mutual and corresponding restrictions upon the lands belonging to each, for the purpose of securing uniformity in the position of buildings.
The covenants being mutual and imposing such restriction in perpetuity are in effect reciprocal easements, the right to the enjoyment of which passes as appurtenant to the premises.
Observances of such a covenant will be enforced by a court of equity. (Lattimer v. Livermore, 72 N.Y. 174; Trustees Col.College v. Lynch, 70 id. 440; Phoenix Insurance Co. v.Continental Insurance Co., 87 id. 400; Perkins v.Coddington, 4 Robt. 647.)
The title, then, which the plaintiff tendered was not free and clear from all incumbrance for certainly a covenant, valid and enforceable in equity, which so limits and restricts the use of twelve feet in depth along the entire front of a city lot as to prevent building thereon is an incumbrance. *Page 323
Upon the trial the plaintiff, by evidence tending to show that the existence of the agreement did not depreciate but rather enhanced the value of the premises, sought to bring the case within the decision of the court in Riggs v. Pursell, (66 N.Y. 193). In that case the purchaser at a judicial sale refused to take title. The court said "while the agreement requires that a court-yard shall be left in front of this lot, for the benefit of the other lots on the street, it also requires that a court-yard shall be left in front of all the other lots for the benefit of this; and all the houses on the street have been built in conformity to this agreement. While this agreement may in one sense be regarded as an incumbrance upon this lot, it cannot be assumed, without proof, that it injuriously affects its value to to any extent whatever." And it was held to be an immaterial defect. But in the case before us the trial court found that the restriction and incumbrance created by the covenant and agreement did, in fact, damage the property, and injure its salability and marketability. The General Term having affirmed the finding, it cannot be reviewed here as there is some evidence to support it. As the case is now presented, therefore, Riggs v. Pursell cannot be invoked in aid of the appellant, and it is unnecessary to consider whether the doctrine of that case would be applicable to a private sale, where the vendor contracts to give a good title in fee simple free and clear of all incumbrances. It follows that the refusal of the court to decree specific performance must be sustained.
It was not error to render judgment in favor of the defendant for the percentage paid at the time of purchase, the expense incurred in the examination of title, and the auctioneer's fees. (Cockcroft v. N.Y. H.R.R. Co. 69 N.Y. 201.)
The appellant contends that the finding of the trial court that the defendant did not have notice of the restriction, is wholly without evidence to support it, and an exception having been taken, an error of law is presented which demands a reversal of the judgment. A reversal will not be granted when a finding is made without evidence to support it unless it is a material fact, and to some extent, at least, gives support *Page 324 to the judgment rendered. The defendant insisted upon the rights secured to him by his contract. He had but to demonstrate that the deed tendered failed in a material respect to comply with its terms in order to become entitled to the judgment rendered. It might have availed the plaintiff, could he have shown that the defendant had notice of the restriction and purchased with full knowledge of its existence and effect.
But in the absence of evidence warranting a finding to that effect the defendant was not aided, nor the plaintiff harmed by a contrary finding.
The other facts found by the trial court abundantly sustain its conclusion of law.
The error complained of, therefore, does not justify a reversal of the judgment.
There are no other questions requiring consideration.
The judgment should be affirmed.
All concur, except HAIGHT, J., not voting.
Judgment affirmed.