table right to enforce the covenant in the Runkle deed is sustained is set forth with great clearness in Coudert v. Sayre, 46 N. J. Eq. 386, 19 Atl. 190. I think complainant's equitable right to enforce the covenants in question is clear, unless it shall be found that she has lost the right through her acquiescence or through the acquiescence of her predecessors in title while owners of the lot now owned by complainant, in the violation of similar covenants in other deeds. The building which defendant is erecting is a brick building within one foot of the front property line of defendant's lot. The covenant in question is:

"That no building shall at any time be erected nearer than twenty feet of the front property line of any street or avenue."

The lots of complainant and defendant are on opposite sides of Baltic (now Fairmount) avenue, and nearly opposite each other.

"If the original grantor of 150 lots by deeds, with restrictions as to building lines, allows two-thirds of the grantees to violate it without protest, it cannot enforce it against a single grantee for the purpose of benefiting its remaining lands; for the grantee thus assailed is entitled to the common privileges accorded to other purchasers who are subject to like restrictions."

to the individual lot. I am unable to discern any duty, the failure of performance of which should operate as an equitable bar, upon the part of an owner of a single lot, on a tract of land similar to the one now in question, to apply to the courts for the enforcement of restrictive covenants the violation of which in no appreciable manner affect such owner. This was, I think, the view entertained by Vice Chancellor Emery in Morrow v. Hasselman, 69 N. J. Eq. 612, 61 Atl. 369, and this view was followed by me in Barton v. Slifer, 72 N. J. Eq. 812, 66 Atl. 899, and again in Brigham v. Mulock Co. (N. J. Ch.) 70 Atl. 185. It may also be noted that the covenants in the Runkle deed, under which defendant holds, are defined as for the improvement of the locality, and in express terms give the right of enforcement in a court of equity to owners of lots in the neighborhood of the lot granted.

It is well settled that the equitable right The covenants contained in the Runkle to enforce restrictive covenants of this na- deed embody a great number of restrictions. ture may be lost by a degree of acquiescence In addition to the restrictions already referin their violation amounting to an abandon-red to there are restrictions fixing the miniment of the right of complainant. In Chel- mum cost of any building to be erected on sea Land & Improvement Company v. Ad- the lot; that the top of the first floor joists ams, 71 N. J. Eq. 771, 66 Atl. 180, Vice Chan- of any building, except stables, shall not be cellor Bergen had occasion to say: less than 7 feet, and not more than 81⁄2 feet higher than the grade of the sidewalk level; that only one building for dwelling house purposes shall be built on a lot; that certain enumerated uses of buildings shall not be permitted; that double buildings must cost at least a certain amount; the location of stables are defined; sundry other details are also provided touching the uses permitted of buildings to be erected. The affidavits filed in behalf of defendant disclose that 57 houses have been erected, and are in course of erection, on the tract in question, and point out all instances in which violations of any of the covenants have occurred. These violations include seven instances in which the height of the first floor joists of buildings are not within the limits defined. One instance is noted where three lots have been converted into four lots, and another where a lot "seems to have been diminished in size." Two chimneys are shown to extend over the side line restriction. Several buildings are shown to be used for storage. One building is used as an apartment house. A building at No. 104 Sovereign avenue is 1.8 feet over the front building line, and another building on the same avenue has a second story which projects over the front building line, and a building at 114 Chelsea avenue projects 7 feet over the front building line, and some violations of the side and rear lines covenants are also shown. The location where the violations already referred to have occurred are given by street numbers, and I am unable to accurately locate them, but they are manifestly all far from the lot of complainant, and in no way affect the desirability of complainant's lot. There is also a

But the conditions stated in the language quoted differ radically from those presented by the present case. When a common grantor has parted with his title to a portion of the land for the benefit of which a restrictive covenant has been imposed on other land theretofore conveyed by the common grantor, it is not thereafter possible for the common grantor to release or modify the covenant, so far as it operated to confer a benefit on the land which he had previously conveyed. Coudert v. Sayre, supra, at page 396 of 46 N. J. Eq., page 190 of 19 Atl. A town site proprietor, owning lots on various parts of the tract, may be directly interested in violations of such covenants upon any part of the entire tract, and acquiescence on his part may appropriately deny to him the equitable right to enforce the covenants, but a violation of a restrictive covenant at a point on the tract distant from the lot of an individual lot owner may be of no interest whatever to such an owner, and cannot appropriately call for affirmative action on his part. It seems to me clear that any claim of bar asserted against the rights of an owner of a single lot by reason of acquiescence in the violation of restrictive covenants of this nature must be measured in its

joining defendant's lot, which is used for touching the building line as one creating building boats, and the location of the build- only an equitable right in complainant to ening appears to violate the covenants relating force its observation. A reference to the to rear and side lines, and at the front of terms of the covenant will disclose that it that lot is a shed which extends to the prop- not only declares its purpose to be to proerty line. This is the only violation of the tect the health and beauty of the locality, covenants in which I think complainant can but by its terms it is declared that the covebe said to be reasonably concerned. From nant shall attach to and run with the land, the description of the shed I do not think it and that it shall be lawful, not only for the proper to regard it as a structure of such a grantor and its successors and assigns, but permanent or substantial nature as to justify also for the owner of any lot in the neighborthe conclusion that its existence should oper- hood deriving title from or through the granate to deny to complainant the privilege of tor, to institute proceedings at law or in equity asserting his rights against defendant. The against any person violating, or threatening rear or side line encroachments of the brick to violate the covenant, except only that no building is necessarily a matter of little or no action at law for damages shall be maintainconcern to complainant. Such encroachments ed against the grantee or his heirs or asare of little interest to persons other than signs unless he or they be the owner of the owners of adjacent lots. There are also sev-premises, or of some part thereof, at the eral houses in process of erection on Sov- time of the violation of the covenant. The ereign avenue northwesterly of Fairmount present case is therefore one in which the avenue which extend 5 feet over the front parties to the Runkle deed have by their stipbuilding line. These buildings cannot rea-ulations agreed that the lot conveyed shall, sonably concern complainant, so far as the desirability of the property is concerned. Three buildings are also being erected on Fairmount avenue southwesterly of Sovereign avenue, which extend 5 feet over the front building line. These are the only buildings on the avenue on which complainant's lot is situated which extend over the front building line, except the shed already referred to, and these buildings are now in process of erection. I do not think that complainant's rights against defendant can be properly considered as lost by reason of her failure up to ⚫ this time to seek to enjoin the erection of the buildings last referred to. See Bridgewater v. Ocean City Ry. Co., 62 N. J. Eq. 276, 292, 49 Atl. 801, affirmed 63 N. J. Eq. 798, 52 Atl. 1130.

as to the front 20 feet thereof, become permanently burdened with an easement in favor of the surrounding property, to the end that the 20 feet referred to shall never be built upon, but shall remain open for the health and beauty of the neighborhood. The covenant is expressly defined as running with the land, and as conferring on all persons holding lots in the neighborhood under the grantor the right to enforce the covenant either at law or in equity.

I am not aware of any policy of law against the creation of such an easement by the deliberative stipulation of the parties in interest. Indeed covenants of this nature have been sustained and enforced when arising only by implication. See Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep. 16. In this view complainant may be regarded as the owner of a legal estate the existence of which is not in substantial dispute, and as now seeking in this court the preservation of that estate, and not merely as the owner of an equitable right unsupported by an interest in the land of defendant.

The application of complainant for relief was promptly made. I think I must take judicial notice of the fact that the bill was presented to me some days before the writ issued, and was thereafter redrafted by reason of certain errors of the stenographer, who copied into the first bill erroneous data relat

From this review of the facts touching violations of the covenants in the Runkle deed it seems clear that there have been no such violations as have substantially changed the contemplated character of the neighborhood, or have defeated the general purposes sought to be accomplished by these covenants. The locality is that of a summer seaside resort. The general purpose of the covenants, as stated in the Runkle deed, is "to secure and perpetuate the health, beauty, ornamentation and general improvement of the locality." So far as the important covenant which requires buildings to be set back 20 feet from the front property line is concerned, it ap-ing to the covenants. pears that, of about 50 completed buildings I will advise a preliminary injunction now on the tract, nearly all have respected that covenant. In this view it approaches a question of public as well as private concern that the spirit of this covenant, made to pre- As the other covenant here sought to be serve the health and comforts of the neigh-enforced relates to the use of the building, I borhood, be maintained. see no necessity of considering that question

against the construction of defendant's building nearer than 20 feet to the front property line.

I have thus far referred to the covenant at this time.

ARTISTIC PORCELAIN CO. v. BOCH. (Court of Chancery of New Jersey. Oct. 22, 1909.)

1. CONTRACTS (§ 116*)-RESTRAINT OF TRADECOMPETITIVE BUSINESS.

A contract that the covenantor will not engage in a competitive business, although a contract in restraint of trade, is not opposed to public policy, but is valid and enforceable, when the restraint contracted for is partial, and is reasonably required for the protection of the covenantee in the use and enjoyment of the particular business the covenantor contracts not to carry on.

[Ed. Note. For other cases, see Contracts, Cent. Dig. § 544; Dec. Dig. § 116.*]

2. CONTRACTS (§ 141*)-CONSTRUCTION-COMPETITIVE BUSINESS.

It will be presumed that the parties intended to make a valid contract and that they designed to provide a reasonable restraint.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 461, 1760, 1761, 1785; Dec. Dig. § 141.*]

3. CONTRACTS (§ 117*)-RESTRAINT OF TRADEVALIDITY.

Where the restraint is without qualification, it is unreasonable and contrary to public policy: but where it is subject to some qualification, either as to time or space, the question is whether it is reasonable, and, if reasonable, it is good in law.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 554-569; Dec. Dig. § 117.*] 4. CONTRACTS (§ 117*)-RESTRAINT OF TRADELIMITATION AS TO TIME.

A contract, founded upon adequate consideration, that the covenantor will not engage in the manufacture or sale of white porcelain door knobs, unlimited as to space, but limited as to time to a period of approximately five years, is reasonable, and will be enforced by injunction.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 554-569; Dec. Dig. § 117.*]

(Syllabus by the Court.)

Bill by the Artistic Porcelain Company against Noah W. Boch, trading as the American Porcelain Works. Preliminary injunction ordered.

that he will abstain from the manufacture or sale directly or indirectly of porcelain, or of any imitation thereof, except tile, until January first, nineteen hundred ten, except as hereinafter provided, and the said Porcelain Co. agrees that so long as the said Boch will promptly furnish it with such black and brown door knobs as may be required of it by the Skillman Hardware Mfg. Co., not to exceed 150,000 in any one month, until May first, nineteen hundred and ten, it will abstain from the manufacture or sale directly or indirectly of black and brown door knobs, mineral knobs, black and brown shutter knobs and black and brown wheels, and the said Boch further agrees that until said May first, nineteen hundred and ten, he will furnish to the Artistic Porcelain Co. for the said Skillman Hardware Mfg. Co. requirements of black and brown door knobs not to exceed 150,000 in any one month, said mineral door

knobs to be delivered to the Skillman Hardware Mfg. Co. and charged at $5.00 per M and Jet at $6.00 per M less 3% discount.”

The parties had business relations with each other under this agreement, with perhaps some variations of its terms (other than those contained in the above recited part), by mutual agreement, until April 7, 1909, when they entered into another agreement containing, among others, the following stipulation:

"It is further covenanted and agreed between the parties hereto that the stipulations, covenants and agreements contained in said contract of July twenty-fifth, nineteen hundred and six between the parties. hereto, by which the party of the second part binds himself not to manufacture porcelain ware excepting tile, until January first, nineteen hundred and ten, and the party of the first part binds itself not to manufacture jet or mineral door knobs for the same period, shall be and the same is hereby extended, as part of this agreement, for five years from said date, to wit, until the first day of

W. Holt Apgar, for complainant. Clark & January, nineteen hundred and fifteen." Case, for defendant.

WALKER, V. C. The bill of complaint alleges that the complainant corporation on July 25, 1906, entered into an agreement in writing with the defendant, which recited that the complainant was then manufacturing black and brown door knobs, shutter knobs, and wheels at the plant of the American Porcelain Works, so called, and the complainant thereby sold to the defendant all right, title and interest it might have in the goods, chattels, stock in trade, chemicals, materials, and other personal property then on the plant of the American Porcelain Works, for which the defendant agreed to pay a certain price, and the agreement then proceeds: "The said Boch further agrees as an important part of the consideration of this sale and transfer

On June 3 and 11, 1909, the complainant ordered of the defendant certain jet and mineral knobs which the defendant refused to supply, writing the complainant under date of June 10th that the defendant did not care to fill the order, and recognized no contract by which he might be compelled to do so; and on June 12th he also wrote the complainant referring him to the letter of the 10th, remarking that he meant exactly what he said, and would fill no orders on the complainant's account. The bill and affidavits show that in July and August, 1909, the defendant manufactured thousands of white porcelain door knobs, and has the same in stock ready to be placed on the market and sold. The bill prays that the contract between the parties may be specifically enforced. and that the defendant may be re

strained from manufacturing or selling di- | years, makes the contract one of partial re

is presented justifying a refusal to enforce | 3. FRAUDS, STATUTE OF (§ 123*)-TENANCY the contract. FROM YEAR TO YEAR-ORAL LEASE VOID UNDER STATUTE.

1. APPEAL AND ERROR (§ 169*)-REVIEW-premises for a further term of three years, QUESTIONS NOT RAISED BELOW.

A question not raised in the trial court rent of $75, payable on the 1st day of each cannot be presented on appeal.