I think the judgment should be affirmed, and, therefore, dissent.
The contract of September 16, 1916, did not grant to the Rockaview Coal and Ice Company, and to Ackerman, any interest in the land of the Empire City Lumber Company. The covenant contained in such contract is, I think, a personal covenant. The opinion of Mr. Justice Scudder (111 Mise. Rep. 658) on this point appears to me sound. The plaintiff, therefore, cannot maintain this action for an injunction, basing his claim upon a property right in the land of the defendant. In other words, the land of the defendant is not subject to an easement in behalf of and attached to the land of the plaintiff.
If, then, the plaintiff has any cause of action, it does not rest upon a property right, but upon the broad claim that a court of equity will not permit a grantee of one who has made a covenant restricting the use of his land, to violate such covenant. Such cause of action rests upon the inherent power of a court of equity to do justice and equity between the parties, and the right to the complete use of land is never restrained because the grantor of the owner has made a contract regarding this use which does not amount to an easement unless the principles of right, justice and equity demand it as an alternative to a wrong.
In this case the so-called restrictive covenant was obtained by *146the plaintiff by the perpetration of a fraud. The original owner of the lot, the use of which, for the purpose of dealing in coal, is sought to be restrained, was under contract to sell the same to certain dealers in coal, who had formed a corporation to purchase it and enter into the coal business in competition with the plaintiff. While this contract was pending, and known to the plaintiff’s grantors, they procured the contract of September 16, 1916, which burdened the title of the vendor in the contract of sale, not only with the covenant as to its use, but with a second mortgage. The purchaser was, therefore, compelled to reject it. This amounted to a fraud upon the purchaser (Gonzales v. Kentucky Derby Co., 197 App. Div. 277), and this fraud is the origin of the promise of the predecessor in title of the defendant which it is sought, by this action, to enforce as against the defendant. It is not a question whether the other party to the contract has received compensation for the wrong so done it. Conceding that it has, it is none the less true that the right of the plaintiff was conceived in iniquity. It is a struggle between certain coal dealers, whom the defendant represents, on the one hand, and the plaintiff, which seeks to exclude competition, on the other. The plaintiff appeals to a court of equity to aid it, basing its claim to relief on a contract procured by a fraud upon prospective dealers in coal, now represented by defendant. The trial court justly and properly, I think, refused to aid in the consummation of the fraud. (Hocking Valley R. Co. v. Barbour, 190 App. Div. 341; Roberts v. Criss, 266 Fed. Rep. 296.)
Judgment reversed, with costs, and judgment directed for the plaintiff, with costs. The findings are to be modified in the order in accordance with the opinion by Kelly, J. Settle order on notice.