Volume 235 — New York Reports

<p>Real property — deeds — covenants in conveyance restricting the construction and use of buildings thereon to first-class private buildings designed for the use of one family only — when such restrictions reasonable and enforcible — action to restrain use of such buildings for a music school — erroneous dismissal of complaint on ground that it does not state a cause of action.</p> <p>1. Where in a contract, duly recorded, between the owner of land in the city of New York and a prospective purchaser, the agreement to be binding upon the heirs and assigns of both parties, the parties agreed that that portion of the block still owned by the vendor “ shall be and hereby is restricted so that the first buildings to be erected thereon shall be first-class private dwellings designed for the use of one family only,” which agreement is expressed upon the part of one or more grantees through whom the defendant, the present owner, derives title, by a covenant “ for himself, his heirs and assigns that tho first buildings to be erected on said premises shall be first-class private dwellings erected for the use of one family only,” it must be held that the exaction of said agreement and covenant survived mere erection and fairly required that the buildings should be private dwellings in reality as well as in mere form and that the “ use ” for which they were to be erected should be the one to which they should be devoted. The language seems not only fairly but conclusively to mean that when a person is required to erect a building of a certain character and for a certain use, that that character and that use are the ones which must be imposed upon it when the erection is completed.</p> <p>2. Where defendant, the owner of a lot on which there was erected a “ private dwelling ” under and subject to the restrictions of said agreement and covenant contained in the conveyances constituting her chain of title to the premises, has rented the building to a co-defendant who is using it for the purpose of conducting a music school for the purpose of teaching music and giving musical entertainments, all of which, it is alleged, result in disturbing the “ peace, quiet and comfort ” of the neighborhood through the commission of “ disturbing, objectionable and discordant sounds and noises arising from vocal and instrumental practice and tuition ” and by concerts causing “ great throngs of people to gather in and approach said premises ” and plaintiffs who own premises adjoining defendant’s property, also subject to the same restrictive covenant, brought this action demanding judgment that the defendants be permanently enjoined and restrained from using and occupying said premises, or any part thereof, for a music school, or for any other purpose than that of a first-class private dwelling, it was error to dismiss the complaint and sustain defendant’s demurrer thereto, upon the ground that the complaint fails to state a cause of action. (Kurtz v. Potter, 44 App. Div. 262, questioned.)</p> <p>Baumert v. Malkin, 201 App. Div. 849, reversed.</p>

<p>(1) Burglary in first degree — Essentials of grime — Erroneous refusal TO CHARGE THAT JURY CANNOT CONVICT IF THEY FIND THERE WAS -NO HUMAN BEING IN HOUSE AT TIME OF ENTRY-ERRONEOUS ADMISSION OF EVIDENCE AS TO WHAT WITNESS ON TRIAL PREVIOUSLY TESTIFIED TO BEFORE GRAND JURY.</p> <p>An essential ingredient of the crime of burglary, first degree, is that the breaking and entry must be in the night time, into the dwelling of another, in which there is at the time a human being. (Penal Law, § 402.) Where, therefore, the evidence in the record not only fails to meet that requirement of the law but discloses that any breaking and entry occurred at a time when no human being was in the house, it was error for the trial judge to refuse to charge "that, if the jury find that there was no human being in this house at the time the alleged entry was made by the defendant, then the jury cannot convict the defendant of burglary, first degree.” The error is accentuated where the judge in the course of his charge stated that if the jury did not believe the defendant guilty of burglary in the first degree they might consider whether he was guilty of burglary in the second or third degree, but omitted to call to the attention of the jury or instruct them as to the elements constituting those crimes.</p> <p>(2) Same — Prejudicial remarks or court ox overruling motion to STRIKE OUT.</p> <p>The admission of evidence as to what a witness on the trial had previously testified to before the grand jury and remarks of the court, in denying a motion to strike out, characterizing her as an “unwilling witness,” which may have resulted in the jury treating her evidence before the grand jury as controlling against defendant, were erroneous, and exceptions to the admission of such evidence and to the remarks of the court in overruling the motion to strike out were well taken.</p>