I concur in the opinion of Presiding Justice Ingraham excepting in so far as it expresses the view that the circumstances under which the building in question was erected are such that five feet on the front of the building should be removed and that the defendants should not be permitted to maintain the building on compensating the plaintiff for the damages caused by the violation of the restrictive *626covenant which this court on the former appeal (132 App. Div. 620) construed as giving the plaintiff an easement in that part.of the premises-of the defendants reserved for courtyard purposes. I agree that the plaintiff did not forfeit her rights under the agreement by making the alteration required in changing the dwelling house into a place of business, and that she is not estopped thereby from enforcing any remedy she would otherwise have had. I am also of the opinion that the preponderance of the evidence shows that the plaintiff has sustained substantial damages and that the award of one dollar is wholly inadequate. It appears that the costs and damage to the defendants that would be caused by a mandatory injunction requiring them to remove the front of their building to the set-back line would be $66,000. 'The value of the plaintiff’s premises is not shown, but it is quite probable that it would not equal or greatly exceed the damages "which would be inflicted on the defendants by such a mandatory injunction. The highest estimate given by any witness of the depreciation in the value of the plaintiff’s premises by the erection of the building on the defendants’ premises over the set-back line is $5,000.
The rule is well settled that a court of equity will enforce such an agreement according to its terms where it has been willfully violated .(Stowers v. Gilbert, 156 N. Y. 600; Lynch v. Union Institute for Savings, 159 Mass. 306), but, on the other hand, I deem the proposition well sustained on principle and by authority that where the violation has not been willful and where the defendant has acted in good faith, that is to say, in the honest belief, founded otreasonable ground, that he had a right to do what he has done and the plaintiff can be compensated in damages and his damages are small in comparison with the damages that will be sustained by the defendant by the issuance of a mandatory injunction, a court of equity will either leave the plaintiff to his remedy at law or determine the amount of the damages sustained by him and grant a mandatory, injunction only in the event that the defendant fails within a specified time to pay the same, and on such payment will require that the plaintiff execute and deliver to the defendant a release from the violation of the covenant. This rule has repeatedly been .applied to restrictive covenants, including set-back agreements, with respect to the use of premises where conditions in the neighborhood have undergone a *627material change. (Roth v. Jung, 79 App. Div. 1; Trustees of Columbia College v. Thacher, 87 N. Y. 311; McClure v. Leaycraft, 183 id. 36; Amerman v. Deane, 132 id. 355; Deeves v. Constable, 87 App. Div. 352; Schwarz v. Duhne, 118 id. 105; Schefer v. Bal, 53. Misc. Rep. 448; affd., 120 App. Div., 880; 192 N. Y. 589.)
The plaintiff’s easements in the courtyard space are no greater than the easements of an abutting owner in a public street, and in those cases where such easements have been invaded by the erection of an elevated railroad the courts have invariably withheld an injunction on condition that the elevated railroad company pay the abutting owner the damages, and on such payment have required that the plaintiff deliver a release of the easements so far as invaded. In those cases the power of eminent domain existed but it had not been exercised. The rule, however, is not confined to eases where the defendant is vested with the power of eminent domain to acquire the easement or property invaded, but has recently been extended by this court, and our decision was affirmed by the Court of Appeals, to the invasion of an abutter’s easement by the elevated railroad company where the company did not have the power of eminent domain, and where, the structure was a public nuisance. (Knoth v. Manhattan Railway Company, 109 App. Div. 802; affd., 187 27. T. 243.) The same rule has also been applied by this court where a building has been erected partly over the lands of another. {Crocker v. Manhattan life Ins. Co., 61 App. Div. 226.) In McClure v. Leaycraft {supra) the rule is stated as follows: “ An injunction that bears heavily on the defendant without benefiting the plaintiff will always be withheld as oppressive. 27o injustice is done, for the damages sustained can be recovered in an action at law, and the material change of circumstances so affects the interests of the parties as to make that remedy just to both.” I think that the principle here stated should govern in the case at bar with the exception that since' the plaintiff is properly in a court of equity the court should retain the action and give him the only relief .to which on these facts he is entitled, viz., a judgment for his damages. In the case at bar the defendants acted upon an erroneous view with respect to their legal rights as did the elevated railroad company in the case last cited. Bad faith was not *628imputed to the elevated railroad company in not knowing its legal rights, and in my opinion it should not be imputed to the defendants now before the court. The defendants were aware of the restrictive covenant, and they attempted to remove any question that might arise thereunder by endeavoring to have the owners of the property affected thereby cancel it. Every owner of property in the block with the exception of the plaintiff and one other, whose property fronted on Broadway, evidently deemed the restrictive covenant of no value and consented to its cancellation or manifested willingness to so consent. There was room for contention in good faith and for an honest belief upon the facts that this restrictive covenant was of such a nature that it was only intended to apply while the neighborhood continued to be used for private residential purposes and that it had ceased to be operative or enforcible for the reason that the use of the property affected thereby had, for the most part, changed and was then used for business purposes.
The defendants were about to make a large expenditure of money ' in erecting a building upon their premises for business purposes, as the land had become more valuable for business purposes and was best adapted to that use. They evidently regarded the restrictive covenant as of no value but rather as a detriment if it were still operative. Evidently with a view to removing any question there might be regarding the effect of the restrictive covenant, they attempted to have it canceled by consent. On finding that all owners of property affected thereby, excepting the plaintiff whose premises were some distance away, being No. 26, while defendants’ were Nos. 38, 40, 42 and 44 West Twenty-sixth street, and another whose property was still farther away and fronted on Broadway, favored that course, they, doubtless acting under the advice of counsel, proceeded to erect the building to the street line instead of to the set-back line. As soon as the plaintiff brought this action they suspended building operations until the court at Special Term in denying the plaintiff’s motion for an injunction construed the covenant as “ intended to apply only to the street while used for private dwellings,” and thereafter they proceeded with the erection of the building which has since been completed. In the meantime the court on the trial of the issues denied a permanent injunction on the same theory as that on which a temporary" injunction had *629been denied. Before that ruling on the rights of the parties was reversed by this court the structure had been completed. It may, not fairly be said that defendants proceeded willfully or in utter disregard of the plaintiff’s rights. It is to be borne in mind that the defendants had a large investment upon which they could receive no return until they completed their building, and they may have had outstanding contracts for construction upon which they would have been subjected to heavy damages.
While, therefore, I concur in the reversal of the judgment for the reason that the plaintiff has sustained substantial damages, I am of opinion that the facts fairly bring the case within the rule which I have stated and that the defendants should be afforded an opportunity of paying the plaintiff’s damages upon her releasing them from a violation of the covenant before a mandatory injunction should issue.
Judgment reversed and new trial ordered, with direction stated in opinion; costs to appellant to abide event. Settle order on notice.