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I think it is quite clear that the defendant has violated the covenant contained in her deed. There is a very broad distinction between a private residence and a flat or apartment house. This distinction was very clearly made by Chancellor McGill in the case of Skillman v. Smatheurst (1898), 57 N. J. Eq. (12 Dick.) 1. There the covenant provided that the premises conveyed should not be used for any other purpose than a private dwelling or private dwellings. The defendants began the erection of a tbree-story frame flat house with five rooms on a floor, suitable for three families. The chancellor held that the buildings, which were in course of erection, were not private dwellings, and were therefore violative of the covenant which restricted the use of the land to the erection of private dwellings. This was followed by Vice-Chancellor Garrison in the case of Lignot v. Jaekle, 65 Atl. Rep. 221. It has been held in England that an effectual way of prohibiting every kind of business is to stipulate that buildings to be erected on the land shall not be used otherwise than as private dwelling-houses. A restriction of this character will prohibit a school (Johnstone v. Hall (1856), 2 K. & J. 414); or a charitable institution (German v. Chapman, 7 C. D. 271); or a boarding house for scholars (Hobson v. Tulloch (1898), 1 Ch. 424); or a studio (Patman v. Harland, 17 C. D. $59). In Rogers v. Hose good (1900), 2 Ch. 388; 69 L. J. Ch. 652, it was held that where the covenant was that every house to be erected should be adapted for and used as and for a private residence only, is broken by the erection of a block of residential flats. In Gannett v. Albree, 103 Mass. 372, it was held that where a lease provided that the premises should be used strictly as a private dwelling, the condition is violated by the use of the premises as a public boarding house; and in New York, in Levy v. Schreyer, 27 App. Dit. 282, it was held that a building constructed so that it can be occupied by three families living separate and apart is not a private dwelling within the provisions of a covenant not to erect any tenement house or any houses except private dwellings, and whether it was intended to be used by more than one family was immaterial.
The distinction between a private dwelling-house or a private residence on the one hand and a house built or occupied as a resi
dence for two or more families is quite obvious. The house occupied by two or more families was called by Chancellor McGill, in the case above cited, a community house; the families living there occupy apartments separate and distinct from each other, and the house becomes not a private residence, as the term is used in its ordinary meaning, but a collection of apartments leased to different tenants, and if the defendant may be allowed to put two families in her house, where shall she stop? She would be as well entitled to put a family in each room and then claim that her property was being occupied as a private residence. The covenant in question gives no such privilege. It must be enforced in accordance with the principles above stated.
An injunction will issue to prevent the further violation of the covenant.
FRED. Kilgus et al.
[Decided March 16th, 1910.)
1. A contract betweer a contractor for alterations on a public school building and a sub-contractor provided for "tin roofing cornices, slate work leader & all metal works for Lincoln ave, school as per plans spec. by E. F. Gilbert, arch. & to his satisfaction, for the sum of twentyseven hundred dollars ($2,700). Lincoln avenue school, accepted.”— Held, that under this agreement, the sub-contractor was not entitled to his pay until he had finished his sub-contract, nor until the architect was satisfied that the work was properly done.
2. In a suit by a sub-contractor to foreclose a lien on an amount due from a city to a contractor for making alterations on a public school building, evidence of an agreement on the part of the contractor to make good the default of a sub-contractor, who contracted with plaintiff to furnish certain material, is incompetent, as the litigation is wholly statutory, and no relief can be afforded in such foreclosure upon such a contract, and the agreement by the contractor will not operate as an estoppel against him in the foreclosure proceedings.
3. A contractor with a city to make alterations in a public school house let a contract to a sub-contractor for a part of the work, and the sub-contractor contracted with a materialman to furnish part of the material. The sub-contractor failed to perform its contract, and the contractor paid a portion of the claim of the materialman, and, after the sub-contractor failed, let the contract to another sub-contractor. The amount paid the last sub-contractor and the amount paid to the materialman exceeded the amount which the contractor agreed to pay the first sub-contractor.--Held, that the materialman had no lien upon money owed by the city to the contractor.
On final hearing on bill, answer, replication and proofs.
Mr. William H. Carey, for the complainant.
Mr. Conover English, for the defendants.
HOWELL, V. C.
The bill in this case is filed to foreclose a lien which is claimed under the Municipalities Lien law. P. L. 1892 p. 369. The facts are as follows:
On August 6th, 1898, the defendant Kilgus, who is a master carpenter, made a contract with the board of education of the city of Orange to provide all materials and perform all the work for the erection and completion of alterations and additions to the Lincoln Avenue school building in that city, as shown on certain drawings and specifications prepared by the board's architect and made part of the contract.
On August 17th, 1908, Kilgus sublet the roofing and metal work to the American Skylight and Iron Works, under an agreement which read as follows:
"Aug. 17, 1908. American Skylight & Iron Works. Tin roofing cornices, slate work leader & all metal works for Lincoln Ave. school as per plans & Spec. by E. F. Gilbert, arch. & to his satisfaction, for the sum of twenty-seven hundred dollars ($2,700). Lincoln Avenue School, accepted. American Skylight & Iron Works, per Jeter. L. D. Kilgus."
In my opinion, the proper construction of this agreement is that the sub-contractor was not entitled to his contract moneys until he had finished his sub-contract, nor until the architect was
satisfied that the work was properly done. These are con litions precedent to any recovery by him against his contractor.
The complainant, Meurer, furnished materials to this subcontractor, all of which materials were used in the building. In the latter part of December, 1908, the sub-contractor failed. It abandoned the work under its contract so that the contractor was obliged to have the work finished by other agencies. On January 2d, 1909, the contractor, Kilgus, made the following contract with the Newark Cornice and Skylight Works for completing the sub-contractor's work:
“Jan. 2, 1909. Newark Cornice & Skylight Works. The completing of all metal work for the Lincoln Ave. school, Orange, V. J., as per plans and specification and details by C. F. Guilbert, ark. & to his satisfaction for the sum of twenty-three hundred dollars ($2 300) L. D. K."
In pursuance of this contract the sub-contractor's work was finished by the Newark Cornice and Skylight Works. It was paid therefor by Kilgus. On January 14th, 1909, the complainant filed a lien claim with the proper municipal officers and took such measures as he was advised were necessary, in order to perfect his lien upon the fund coming due from the municipality to the contractor, Kilgus. The validity of this lien is in question.
The complainant proved some correspondence between himself and Kilgus which he claims operates in his favor as features of
All the material furnished by him to the American skylight company was furnished between October 20th and October 31st, 1908. On October 16th, Kilgus wrote a letter to the complainant in which he said:
“I will deduct from the American Skylight & Iron Works $1,000 and place same to the credit of your account for payment when the work on the Lincoln Avenue school is completed at Orange. N. J.”
On the same day the complainant wrote to Kilgus acknowledg. ing receipt of his letter, stating, among other things, the following:
“We understand that you are willing to agree to make the first payment to us a inounting to $1.000 when the American Skylight & Iron Works have done this amount of work. Will you be good enough to write us to this effect as on your original letter as pointed out to you the payment could be withheld by you until the work was done."
In a postscript he states that he understands that the first payment is due to the American Skylight and Iron Works when the main work is done; second payment when cornice is on the annex and the roof of the wings has been completed.
Up to this time it is quite manifest that there was no agreement whatever between the parties arising out of this correspondence; but on October 19th, Kilgus, in reply to the last letter of the complainant, stated as follows:
“I will make first payment of $1,000 to you for the account of the American Skylight & Iron Works for material you are to furnish for the Lincoln Avenue school, Orange, N. J."
On December 7th, after the complainant had furnished all his material, Kilgus writes:
"We are authorized to-day to make a payment of $1,000 to you by the American Skylight & Iron Works of Jersey City on account of materials furnished for the Lincoln avenue school, Orange, N. J. We are sending you $500 to-day and will make payment of the balance in a few days; as we have several heavy payments coming due this week we are obliged to make it two payments at this time, which we trust will meet with your satisfaction."
On January 20, 1909, Kilgus wrote to the complainant, in which he said, among other things:
"In reply to yours of the 31st ult. I beg to say the American Skylight & Iron Works had a contract on the Lincoln avenue school of Orange, N. J.. for which I agreed to pay the first thousand dollars when due to you and charge it to the American Skylight & Iron Works account. I find by closer investigation they have not done a thousand dollars worth of work as per the contract, and what they have done is not satisfactory to the terms of the contract, and they have laid down on the job altogether, and I have been obliged to serve them with a three days' notice which has expired and I have not heard from them. Their contract price is $2,700 to do this work, and if you care to complete the work according to the terms of the contract you can do so for the balance of same which is $2,200. I must know immediately," &c.
And on January 7th, of the same year, he again wrote to the complainant giving his version of the understanding between him and the complainant and declining to make any further pay