(Download) "Stella Etkin v. Huldah M. Hyney" by Supreme Court of New York # eBook PDF Kindle ePub Free
eBook details
- Title: Stella Etkin v. Huldah M. Hyney
- Author : Supreme Court of New York
- Release Date : January 16, 1969
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 60 KB
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[32 A.D.2d 704 Page 704] Defendant conveyed to plaintiff lands on the west shore of Lake George upon which plaintiff constructed a dwelling. Defendant
retained title to lands adjoining on the north and south and to a small island reached by a footbridge. In her conveyance
to plaintiff, the defendant restricted the use of her shore parcel on the south and that of the island to "private residential
uses only"; and later she constructed, on property other than these restricted lands, six dwellings, referred to as summer
cottages. On the oral argument it appeared that these were substantial and fairly costly structures. Each was leased for the
four-month summer season, the two as to which there was specific testimony for $2,800 and $2,500, respectively. The complaint
sought, so far as now material, to enjoin the construction of a road on the shore parcel to permit access by defendant's tenants
to the lake, to enjoin such tenants' passage over the shore parcel and their use of the island for picnicking, swimming, boating
and parking. The testimony upon which this relief was sought related to the uses of the properties in 1966 and 1967 and, except
for the innocuous testimony of one of defendant's lessees, was elicited entirely from plaintiff's husband. He said that in
1966 and 1967 "children and adults used the beach area * * * used the island for boating, swimming, picnicking * * * on several
occasions a small motor boat was actually driven through the shallow area right onto the shore. Boats were launched at that
site. On one occasion I noticed a child riding a bicycle into the water at that site." The uncontradicted proof, in part documentary,
was that none of defendant's leases conferred any rights to the uses complained of; that defendant extended the "courtesy"
of one or more of such uses to some of her friends and to one of her lessees in 1966 and to two of them in 1967, limiting
permission to the "ones that I cared to extend that courtesy to". In construing conveyances containing covenants running with
the land, the authorities uniformly hold that restrictive covenants must always be construed against those seeking to enforce
them. (Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242, 249; Minister, etc., Reformed Prot. Dutch Church v.
Madison Ave. Bldg. Co., 214 N. Y. 268; Schoonmaker v. Heckscher, 171 App. Div. 148, affd. 218 N. Y. 722.) It is equally well
settled that where such a covenant is reasonably capable of two constructions, the construction which limits the restriction,
rather than the one which extends it, should be adopted. (Single v. Whitmore, 307 N. Y. 575; Premium Point Park Assn. v.
 "Stella Etkin v. Huldah M. Hyney" by Supreme Court of New York # eBook PDF Kindle ePub Free){kind=link}