No claim is made but that the covenants above mentioned run with the land and can be enforced, unless some subsequent events have taken away that right. The grounds upon which the defendant claims to avoid compliance with the covenants contained in the deed through which he derives title, seem to be these :
1st. Because the plaintiff has not interfered with the defendant in his construction of a portion of a hotel on the front fifty feet of his lot Ho. 3.
2d. Because she has permitted lot Ho. 2 to be used for purposes of trade.
*5043d. Because she has permitted the grantee of lot No. 1 to violate the covenant without taking action against him.
4th. Because the plaintiff herself conveyed lot No. 4, with a building which had been erected upon it by the equitable owner, which was a violation of the covenant.
5th. Because the character of the neighborhood has so changed that now the parties would not make the covenant, and therefore it should not be enforced.
The foundation of the 1st, 2d and -3d of the grounds above stated seems to be this : That, unless a party who has an interest in enforcing a covenant resists every violation of it at once, whether such violation is deemed by the party to be of any importance, or injures him or not, he thereby loses all right to enforce any portion whatever of a covenant, even when it is about to be violated in a manner which will work great, certain and direct injury to the party calling in its aid. I have been unable to find any case supporting any such doctrine, nor has my attention been called to any. Upon the contrary, in the case of Western v. McDermott (Law Rep. 1 Eq. Cas. 499), where this question was discussed, Lord Bomilly, M. B., says : “ I am of opinion that the plaintiff, because he has not complained of certain breaches of covenant, which, in my opinion, have inflicted no injury upou him, has not thereby debarred himself from complaining of a breach which does affect the value of his property.” The plaintiff in this case also had committed breaches of the covenant. Upon an appeal being taken (L. Rep. 2 Ch. App. 72), L. C. Chelmsford says: “ I cannot, however, understand how a passive acquiescence in one breach of a covenant can be considered to be a waiver for all future time of the right to complain of any other breach; ” and he further says, it not being shown that the plaintiff’s violation of the covenant had ever been complained of, that it injured any one, such a violation is not the shadow of an answer to the plaintiff’s bill.
The above case is exactly parallel to the one before the court, and negatives every proposition claimed by the defendant founded upon passive acquiescence. It is true that the plaintiff, having seen the defendant erect upon the front of his *505lot a part of a hotel without objection, could not be allowed to come into court and insist that he should take that building down; but it does not follow that, because the plaintiff has waived her right to insist upon having only genteel dwelling-houses upon these lots, which may have been a matter of indifference to her, she has lost all right to have freedom of air, light and vision, which may be vital to the enjoyment of her property.
The change in the character of a neighborhood perhaps might afford a ground for refusing to enforce such a covenant, as far as requiring the lots to be occupied only by genteel dwelling-houses is concerned, although this is extremely doubtful ; but such a rule could only apply to the uses to which the property could be put. No such change, however, can make unnecessary to any owner, for the proper enjoyment of his or her property, freedom of air, light and vision. These are necessary to the enjoyment of all property for whatever purpose used. I can see no reason why the plaintiff has not the right to enforce the covenant made for the benefit of her land, so that she may enjoy thereon freedom of light, air and vision.
As to the allowance granted in this case, I see no error. The action was tried before one judge, a motion for an extra allowance was made before another, who denied the application. Subsequently he vacated the order denying the application, and sent the motion to be heard before the judge who tried the cause, who granted the application. I see no error in this. In equity cases no judge, except the judge who has tried and decides the case, should entertain a motion for an allowance.
The costs are entirely in the discretion of the judge trying and deciding every such case. He has the power to grant or refuse costs, as he thinks the interests of justice require, and it should be for him alone to determine the question of an extra allowance, as it is for him alone to determine whether costs shall be allowed or not. It is' a question whether, in an equity case, any judge, except the judge who has tried and decided the cause, has the power to grant an allowance. After the judge who has tried and decided the.cause has determined what costs a prevailing party may have, as he has a perfect right to do, can *506another make an addition to his judgment, by determining that additional costs shall be allowed 3 It seems to me not, because the whole question of costs is one for the exercise of the discretion of the judge trying the case.
The judgment and order must be affirmed, with costs.
Joseph F. Daly, J., concurred.
Judgment affirmed.