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First Department, November, 1911.

[Vol. 146. afford ground for denying equitable relief, for, as was said by DANFORTH, J., in Trustees of Columbia College v. Thacher (87 N. Y. 311, 319), it is apparent that such encroachment was anticipated. It cannot be said that the encroachments of business have made the property undesirable for private residences. A fine public building and a park occupy the block on the north side of Fortieth street. The plaintiff says that she wishes to enjoy her property as a private residence. When she purchased it she had a right to rely upon the assumption that the encroachment of business would be stopped at the line of the restricted territory, and, in our judgment, it is no answer to her claim for equitable relief that the property may be worth more for business purposes. The defendant bought knowing, or chargeable with knowledge of, the restrictive covenant. It was expressly provided in the referee's deeds that the covenant of the second party should attach to and run with the land, and that it might “be proceeded on for an injunction and for specific execution thereof against the said party of the second part, his heirs or assigns. In the case of McClure v. Leaycraft (183 N. Y. 36), chiefly relied upon by the respondent, it was specifically found by the trial court that the change in the character of the neighborhood had made the property affected by the restrictive covenant undesirable for the erection of private dwellings, and upon that finding the Court of Appeals held that it would be inequitable and unjust to grant injunctive relief. That case was decided upon the authority of Trustees of Columbia College v. Thacher (supra), which, as already pointed out, distinctly recognized the principle that pecuniary considerations alone, or the mere encroachment of business up to the restricted territory, did not justify the denial of equitable relief. That principle was again recognized in Rowland v. Miller (139 N. Y. 93), and recently by this court in this department in Goodhue v. Cameron (142 App. Div. 470). If the further encroachment of business on the block be prevented, the plaintiff's premises may remain desirable for residence purposes, and it cannot be said, therefore, that the enforcement of the covenant will harm the defendant without conferring any substantial benefit on the plaintiff.

App. Div.]

First Department, November, 1911. But it is urged that the proposed alteration does not violate the covenant, and for that proposition Clark v. Jammes (87 Hun, 215) is cited. An examination of the record in that case discloses that the only change in the exterior appearance of the building was made by changing the two windows on the first or parlor floor into one window and by cutting a door in the middle of the front basement, and by putting windows on either side thereof. That case was decided on the point that the covenant did not restrict the use to which the premises could be put, and we may assume in this case that the covenant only referred to the character of the building to be erected. It was not satisfied, however by the erection of a brick or stone private dwelling, not less than three stories in height. The language of the covenant is, “the party of the second part, his heirs or assigns, shall not at any time hereafter erect, or cause, or suffer, or permit to be erected,” etc. The alteration of a private dwelling house into a business building would violate the covenant as plainly as the erection of a business building in the first instance would violate it. The putting in of the store front radically changes the character of the building and deprives it of its character as a private dwelling house.

It is next urged by the respondent that the restrictive covenant is not enforcible for the reason that the court in the partition suit had no power to require the premises to be sold subject thereto, and for that proposition Lewis v. Ely (100 App. Div. 252) is cited. That case, however, was decided without passing upon the point. The court in the partition suit had jurisdiction of the parties and of the subject-matter. It decreed that a sale should be made in parcels, and that the referee's deeds should contain the said covenant. It was stated in the petition of the plaintiff that, if thus sold, the premises would bring a much larger price, and doubtless that was the result. While the order recites that the defendants objected, none of them appealed. The purchasers, therefore, bid, knowing that each would take subject to said covenant, and the effect of the transaction was that they agreed as among themselves to be mutually bound by it. The consideration, therefore, was the mutual covenant of each, and it is quite unnecessary now to decide whether this court would approve of

First Department, November, 1911.

(Vol. 146. such a provision in a decree in partition if the point were raised on an appeal by one of the parties to the suit. While we have found no case in this State directly in point, it was held in Rosenkrans v. Snover (19 N. J. Eq. 420) that commissioners of partition had the power to create easements in one parcel for the benefit of an adjoining parcel, and that case was cited with approval by CULLEN, Ch. J., in Simmons v. Crisfield (197 N. Y. 365, 369).

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

HAM, P. J., MCLAUGHLIN, LAUGHLIN and CLARKE, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

CATHERYN MCMAHON, Appellant, v. ISAAC SCHNEER'S Son &

COMPANY, Respondent.

First Department, November 3, 1911.

Master and servant - negligence – injury by buttonhole machine

verdict for plaintiff reinstated.

Appeal from an order setting aside a verdict for the plaintiff in an action

by a servant against her master to recover for personal injuries received through alleged negligence. The plaintiff was injured while attempting to remove a cutting blade from a sewing and buttonhole machine. Evi. dence examined, and held, that the order should be reversed and the verdict reinstated.

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APPEAL by the plaintiff, Catheryn McMahon, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 9th day of December, 1910, setting aside a verdict in favor of the plaintiff for $3,500 and granting the defendant's motion for a new trial made

upon the minutes.

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James B. Henney, for the appellant.

Allan E. Brosmith, for the respondent.

App. Div.] First Department, November, 1911.
MILLER, J.:

The plaintiff while in the employ of the defendant was injured by the unexpected descent of a knife on a combined sewing and buttonhole machine, as a result of which injury she lost the index finger on her right hand, and suffered a serious impairment in the use of the hand. It is undisputed that she received the injury while attempting to remove the cutting blade from the machine pursuant to the directions of her forelady. The machine had not been in use for some months prior to the accident, and there is no pretense that the plaintiff had any knowledge of the defect which, it is claimed, caused the injury. It is also undisputed that a spring, designed to hold a brake against the flywheel so as to lock it, had become so stretched that it did not have sufficient tension to do its work. An expert testified, without contradiction, that, with the spring in that condition, a slight jar or vibration would cause the machine to start and the knife to descend whether the belt was on or off. He also testified that, nine months before the accident, he examined the machines in the defendant's factory pursuant to its request, and reported the condition of the particular machine in question to the defendant's superintendent. It appears plain, from the evidence, that that machine was not used from that time until the plaintiff was directed to remove the knife from it, with the result already stated.

The defendant called two witnesses, one to identify the machine upon which the plaintiff was injured; the other to testify to an alleged admission made by the plaintiff immediately after the accident, to the effect that it was caused by the plaintiff putting her foot on the treadle. That witness was contradicted both by the plaintiff and by the forelady, who was present. It appears from the representation of the machine in the record that a person engaged in removing the knife would be very unlikely to be in a position in which he could put his foot on the treadle.

While the proper exercise by the court of the power to set aside verdicts is salutary, and often necessary to prevent a miscarriage of justice, there must be some reasonable basis fo:the exercise of such power; and, as we are unable to discover

First Department, November, 1911.

[Vol. 146.

any valid reason for interfering with the verdict in this case, it becomes our duty to reinstate it.

The order appealed from should be reversed, with costs, and the verdict of the jury reinstated.

INGRAHAM, P. J., LAUGHLIN, SCOTT and DOWLING, JJ., concurred.

Order reversed and judgment ordered on verdict, with costs.

BENJAMIN GRIFFEN, Respondent, 1. ABRAHAM ALEXANDER

EDELMAN, Appellant.

First Department, Novenber 3, 1911. Contract - guaranty of payment - Statute of Frauds — mutuality

part payment by guarantor – evidence – quantity and purchase price of goods sold.

A written memorandum providing that the person signing the same,

guarantees all bills as they may become due for goods sold to his brother by a certain person, not to exceed the sum of $500 of unpaid bills for goods which the brother might buy during one year from date, and further providing that when the brother shall owe the promisee the sum of $500 the guarantor shall be notified, sufficiently complies with

the Statute of Frauds. Such contract is not unenforcible for lack of mutuality. As such guaranty is limited in amount to $500 a payment by the guar

antor on account of sales made to the brother reduced his obligation

under the guaranty pro tanto. Evidence in an action to recover on said guaranty examined, and held,

insufficient to show the amount of the guarantor's liability by reason of a failure to prove the quantity and price of the goods purchased.

APPEAL by the defendant, Abraham Alexander Edelman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1910, upon the verdict of a jury for $500, and also from an order entered in said clerk's office on the 23d day of December, 1910, denying the defend ant's motion for a new trial made upon the minutes.

Charles J. Belser, for the appellant.
Moses Cohen, for the respondent.

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