I am unable to concur in the conclusion reached by my associates. To my mind it seriously impairs one of the most valuable remedies given by the Code, that of permitting parties to submit their controversies upon facts agreed upon. If the facts in this case are not such as can be submitted to the court for its determination of the rights of the parties, I apprehend that the legal profession in the future will find it difficult to determine the facts and cases that may be submitted.
The rule, as I understand it, is that the facts agreed upon should be such that conflicting inferences of fact may not be drawn therefrom, and that they should be sufficiently or so fully stated as to enable the court to award judgment thereon.
The defendant is the owner of a tract of land on One Hundred and Forty-eighth street in the city of New York, upon which there is a covenant against the erection of a tenement house. He has planned to erect thereon a building which he claims to be an apartment house. The plaintiff seeks to enjoin him from the construction of the building, upon the ground that the building would be a tenement house, and, therefore, prohibited by the covenant. The only question, therefore, in controversy is as to whether the proposed structure would constitute a tenement or an apartment house. For the purpose of having this controversy determined, they have agreed upon all of the facts pertaining to the proposed structure, together with the character of the buildings existing upon that block and of the surrounding territory. The building is to be one hundred feet in width at its front on 148th street, eighty-seven feet in width in the rear, and eighty-one feet in depth. It is to be six stories high, constructed of brick and stone, with tile floors for the main hall, marble wainscoting, divided into apartments which contain a private hall, parlor, dining room, kitchen, bedroom, servants' room, private bathroom and closet; each apartment to be finished with hard wood, heated by steam, equipped for lighting by electricity and gas, provided with hot and cold water, openwork plumbing, gas ranges for cooking, a dumbwaiter and a *Page 438 long distance telephone. The building is to have an electric elevator, is to cost one hundred and twenty-five thousand dollars, and the apartments are expected to rent for about eleven dollars per room per month, making from fifty-five to sixty-six dollars per month for an apartment; detailed plans of the proposed building are given, and also an architect's picture of the front elevation as the building will appear when completed. Other details of the work are embraced in the statement of facts which need not now be stated. It is not suggested that any essential fact has been omitted from the agreement, or that could be proved upon a trial that would further aid the court in determining the question upon which the parties differ. It is contended, however, that all of the facts submitted are purely evidentiary in their nature, leaving the essential, decisive or ultimate fact as to whether the structure would constitute a tenement or an apartment house undisposed of. If they had been able to agree upon that question, there would have been no controversy to submit to the court. If a person goes to a grocery store and buys a quantity of tea for two dollars, sugar for three dollars, and flour for five dollars, I presume the three purchases would be evidentiary facts upon the question as to the amount that would be owing the groceryman. But with the items of the three purchases agreed upon, I apprehend no court would hesitate about ordering judgment for the amount due.
In the case of Kitching v. Brown (180 N.Y. 414) we have recently defined tenement houses and apartment houses, showing the distinction between the two classes of structures. The question at issue between the parties has to be determined from the character of the proposed structure, the material used, its cost, appearance, its appointments and uses, all of which are covered by the facts agreed upon and from which the court is asked to determine from those facts whether the proposed structure is brought within the definition constituting that of an apartment or a tenement house. This, I think, is a conclusion of law drawn from the facts agreed upon. Suppose the plaintiff had brought an action to enjoin the *Page 439 defendant from constructing the building, and in his complaint had set forth the identical facts agreed upon from which he claimed that the structure would constitute a tenement house, and that the defendant had demurred thereto, contending that upon the facts stated the structure would be an apartment house and that, therefore, the complaint did not state a cause of action. Could it then be contended that a question of law would not be presented for the determination of the court? Again, suppose the action had been brought to trial, and thereupon, by stipulation of the parties, the facts as here agreed upon had been read as the evidence in the case, would there have been any question to submit to the jury? I think not.
It is further contended that the facts agreed upon are not only merely evidentiary, but that they are also such that conflicting inferences of fact may be drawn therefrom. If so, my associates are correct in the conclusion which they have reached. But what conflicting inference is there that can be drawn from these facts? My attention has been called to none. Stone is stone, marble marble, and brick brick. I am not aware that any conflicting inference can be drawn from the fact that the building is to be constructed out of these materials, nor am I able to discover any of the other facts stated which are open to change or modification by inferences of fact which may be drawn therefrom. This is not a case involving the intent of a person which may only be determined from inferences drawn from his acts, conduct and expression. It is a case in which the submission consists of the facts stated, which mean what they state and nothing more, which to my mind are not subject to change by conflicting inferences.
I, therefore, am of the opinion that the question submitted ought to be determined upon its merits.
CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, WILLARD BARTLETT and HISCOCK, JJ., concur with WERNER, J.; HAIGHT, J., reads dissenting opinion.
Judgment reversed, etc. *Page 440