Opinion
Argued January 15, 1975
Decided February 27, 1975
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ALBERT A. BUSCHMANN, J.
Aron Twerski for appellant.
Edward L. Sadowsky for respondents.
MEMORANDUM. The case comes to this court upon affirmed findings of fact that (1) the properties owned by plaintiffs and defendant, along with other neighboring and contiguous lots, were encumbered with specific restrictive covenants prohibiting their use for any purpose "except for one private residence", that (2) "concededly with knowledge of the covenant and of the plaintiffs' intention to enforce it", defendant purchased one of the restricted properties and commenced using it for a purpose violative of the covenant, and finally, that "the area retains a residential character of substantial value". In these circumstances, the order affirming the judgment directing enforcement of the covenant as a proper exercise of plaintiffs' contractual rights, and the limitation thus imposed upon defendant's use of its property for residential purposes, must be upheld by this court, because of affirmed findings of fact ( Rudman v. Cowles Communications, 30 N.Y.2d 1, 5). In the absence of a proper quantum of proof or a finding that "the character of the neighborhood has so changed as to defeat the object and purposes for which the restrictions were imposed", such a covenant is enforceable ( Evangelical Lutheran Church v. Sahlem, 254 N.Y. 161, 166; Real Property Actions and Proceedings Law, § 1951).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE concur; Judge FUCHSBERG dissents and votes to reverse in the following memorandum: I construe the general language of the covenant to be limited by the more specific enumeration contained in it (Restatement, Contracts, § 236, subd. [a]). Even if not so construed, in my opinion plaintiffs' use of their property for a medical office (cf. Forstmann v. Joray Holding Co., 244 N.Y. 22, 30) constitutes a sufficient violation of the covenant so as to preclude them from seeking its enforcement to cut off the noncommercial, indeed religious, use of defendant's property in the changing neighborhood here involved.
Order affirmed, without costs, in a memorandum.