The action is in equity to restrain defendant from adding stories to the building now on the premises granted originally to one of the defendant’s predecessors in title. The deed contained a restriction and created a negative easement in these words: *124“ The building erected or to be erected on lot hereby conveyed to be only one story high.”
The effect of such a restriction is to create an easement in favor of the premises retained by the grantor. (Brown v. O’Brien, 168 Mass. 487, and cases cited; Hobson v. Cartwright, 93 Ky. 368; Meigs v. Lewis, 164 Penn. St. 597; Smith v. Bradley, 154 Mass. 230; Clark v. N. Y. Life Ins. & Trust Co., 64 N. Y. 33; Keening v. Ayling, 126 Mass. 404; Lignot v. Jaekle, 72 N. J. Eq. 233.)
The defendant challenges the effect of the language and urges that its predecessors in title made no covenant binding their heirs to keep the agreement expressed in the deed, and in support of its contention cites the case of Krekeler v. Aulbach (51 App. Div. 591). That case has never been cited that I can find and was affirmed in the Court of Appeals (169 N. Y. 372) without passing upon the question of the effect of the restriction contained in the Krekeler deed.
Let us examine whether the restriction is in the nature of an exception or a reservation. If in the nature of a reservation the provision in the deed has one effect; if in the nature of an exception, quite another.
“ A reservation is a clause in a 'deed, whereby the grantor doth reserve some new thing to himself out of that which he granted before ” (Shep. Touch. 80) — it is “ something taken back out of that which is clearly granted. * * * A reservation is never of any part of the estate itself, but of something issuing out of it, as * * * rent or some right to be exercised in relation to the estate; as to cut timber upon it. An exception, on the other hand, must be a portion of the thing granted, or described as granted, and can be of nothing else; and must also be of something which can be enjoyed separately from the thing granted.” (Craig v. Wells, 11 N. Y. 321; Cunningham v. Knight, 1 Barb. 399; Starr v. Child, 5 Den. 599; Claflin v. B. & A. R. R. Co., 157 Mass. 489.)
If then the right to enjoy light and air of the parcel granted be an exception it falls within the rule of law where an easement i$ created by way of exception. The word “ heirs ” is not necessary to create an easement in fee if the grantor owned the fee at the time of conveyance. (Claflin v. B. & A. R. R. Co., supra; Wood v. Boyd, 145 Mass. 176; White v. N. Y. & N. E. R. R. Co., 156 id. 181; Craig v. Wells, 11 N. Y. 315.)
In this last case the court says: “ Unless, therefore, the clause in question is obligatory upon the grantee as a covenant, * * * it must have force and effect, if at all, as an exception or reservation.”
There was by the deed under consideration excepted to the grantor the use of the light which was part of the fee. He excepted *125that to himself, his heirs and assigns. If he did, plaintiff should have a recovery here.
I vote for an affirmance of the judgment.
Judgment reversed on the law and facts, with costs to the appellant, and final judgment directed for the defendant dismissing the complaint upon the merits, with costs. The court disapproves findings of fact numbered 41, 42 and 48, and finds that it was the intention of the parties to the deed of January 17, 1881, Strong to Ayres and Johnson, that the building restriction therein should be simply an agreement between the parties to the deed, beneficial to the grantor only, and not a servitude or easement in the property granted for the benefit of the plaintiff’s property.