Goldstein v. Rosenberg

Blackmar, J. (dissenting):

I dissent.

The prohibition against the maintenance of the garage is not found in the use of the word “ stable.” If it be prohibited, it is by the general clause against offensive business. Under the doctrine of noscitur a sociis, that means a business that is *497offensive in the same way that a stable or other prohibited use is offensive. A stable is offensive to the sense of smell and to the sense of hearing, and is unsightly and, therefore, offensive to the eye if it should be placed in a residential neighborhood. Whether a garage is offensive in the same way or not is a question which may be raised in an action by any property owner interested in the restriction. It is certainly as offensive to the sense of hearing as a stable, if not more so. There is to a less extent an offense to the sense of smell, due to the oil and gas used. I, therefore, think that this is not a case where the purchaser is bound to take the risk of litigation on this point.

Whether or not the change or alteration in the condition of the neighborhood is such as to render it inequitable specifically to enforce this covenant against one seeking to erect a garage, is, under the case' of Trustees of Columbia College v. Thacher (87 N. Y. 311), also a question which may be the subject of judicial determination. The general rule is that covenants of restrictions are enforcible by specific performance, and the burden rests upon the defendant in such an action to show a condition of the neighborhood which makes it inequitable to enforce them. This is a burden which a purchaser should not be compelled to assume.

I think the title is unmarketable.

Jenks, P. J., concurs.

Judgment affirmed, with costs.