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and 121 New York State Reporter in the absence of contributory negligence or assumption of risk on the part of the intestate"-is perhaps subject to verbal criticism, but it is innocuous in view of the fact that, at the instance of the learned counsel for the appellant, the court subsequently charged "that to find defendant Young responsible the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes.” The request: “In the absence of stipulations or contracts devolving the work of shoring the building upon a subcontractor, the duty of shoring rested upon the principal contractor"—was not erro neous. The charge is not that the contractor was bound to shore the building as matter of law, but that the duty of shoring rested upon the contractor as against subcontractors, in the absence of any proof to the contrary. It certainly did not rest upon the owner. Burke v. Ireland, 166 N. Y. 305, 312, 59 N. E. 914. It certainly did not presumably rest upon any subcontractor. The charge as to the hazards, originally made, is an adoption of the headnote of Davidson v. Cornell, 132 N. Y. 228, 30 N. E. 573. If it be open to the rather subtle criticism made, the court charged the law in the following request. The request to charge: “The contract between the owner and the defendant Young devolved upon Young the duty of accomplishing the result intended, to wit, the reconstruction of the building with safety to the workmen and the public”-is open to criticism as to the effect of the contract upon strangers thereto. Cochran v. Sess, 168 N. Y. 372, 61 N. E. 639. But the court, at the appellant's request, thereafter charged: “Any provision in the contract between the defendant Young and the owners of the building as to the eventual liability for damages does not inure to any benefits to the plaintiff in this action.” The other requests do not require particular comment. The learned counsel for the appellant sums up his objections as follows:

"Taking as a whole the instructions given over exception and those refused, it certainly seems apparent that the jury were saturated with the idea (1) that Young was an absolute insurer for the safety of the plaintiff's intestate; (2) that he was responsible to the plaintiff under, pursuant to, and because of bis contract with the owner, to which the decedent was not a party; (3) that it was his duty to do the shoring at the place where the beams fell, and to see that such shoring was always in place; (4) that he interfered with the details of the work by giving orders in respect thereof, despite the whole of the evi. dence showing that he only gave orders to see that the work conformed to the plans and specifications; (5) that negligence of deceased is no defense, even though the proximate and concurring cause; (6) that assumption of risk entered into the relation existing between Young and the deceased; and, (7) most of all, he was liable for the negligence of the person whose duty it was to do the shoring, whomsoever it may have been.”

(1) The court did not finally charge that Young was an absolute insurer because it charged that, "to find defendant Young responsible, the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes." (2) The court finally charged: "Any provision in the contract between defendant Young and the owners of the building as to the eventual liability for damages does not inure to any benefits to the plaintiff in this action." As to (3), see the authorities cited, supra. As to (4), I think the charge was fairly within the evidence, especially in view of Mr. Young's admission before the coroner's jury. As to (5), the court charged quite the contrary, namely, if it was the proximate and concurring cause it precluded recovery. As to (6), the court did not charge that the as sumption of risk entered into the relation, though it did charge as to that doctrine. And as to (7), the court finally charged correctly: "To find defendant Young responsible, the jury must find some act of personal negligence on his part which caused the accident, independent of all other causes."

The judgment and order should be affirmed, with costs. All concur.

(92 App. Div. 160.)

KITCHING et al. v. BROWN.

(Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. DEED-COVENANT AGAINST ERECTION OF TENEMENT HOUSE-CONSTRUCTION.

In an action for an injunction against the owner of certain houses erected on land acquired under a covenant in a deed against the erection of any "tenement house” on the land conveyed, to prevent their occupancy, it appeared that defendant had constructed, on land fronting 153 feet, three modern apartment houses, seven stories high, with two apartments on each floor. The structures are high-class buildings of their kind; and have all the conveniences and appliances of the best order of such houses. Externally in their architecture they are of a character and appearance corresponding with first-class dwelling houses in the immediate neighborhood. The sum of $400,000 was expended for their erection. Held, that such

buildings are not within the prohibition of the deed. 2 SAME-STATUTE-DEFINITION.

Laws 1867, p. 2273, c. 908, $ 17, defining a tenement house as every house, building, or portion thereof which is rented, leased, let, or hired to be occupied, or is occupied, as the home or residence of more than three families independently, doing their own cooking upon the premises, but limiting the definition to that particular act, has no application to the construction of a covenant in the deed against the erection of a tenement house on the land conveyed.

Van Brunt, P. J., and McLaughlin, J., dissenting. Appeal from Special Term, New York County.

Action by George Kitching and others against Kate C. Brown. From a judgment for defendant, plaintiffs appeal. Affirmed.

For former opinion, see 75 N. Y. Supp. 768.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O'BRIEN, and LAUGHLIN, JJ.

H. W. Hardon, for appellants.
H. Swain, for respondent.

PATTERSON, J. At the trial of this cause at Special Term (75 N. Y. Supp. 768) the complaint was dismissed upon the merits. The action was brought by owners of dwelling houses on the southerly side of Seventy-First street, west of West End avenue, in the borough of Manhattan, in the city of New York. Adjoining the premises owned by the plaintiffs, and to the west thereof, are situated lots of land belonging to the defendant, upon which apartment houses have been and 121 New York State Reporter built. Title to the lots, both of the plaintiffs and of the defendant, is derived from conveyances made by the executors of one Jacob Harsen, and all such lots are affected by a covenant, which is in the following words:

11. See Covenants, vol. 14, Cent. Dig. $ 169.

"And the said party of the second part, for himself, his heirs and assigns, doth hereby covenant to and with the said parties of the first part, their successors and assigns, and with the owners for the time being of the adjacent lots, jointly and severally, that neither the said party of the second part, nor his heirs nor assigns, shall or will, at any time hereafter erect any buildings within forty feet of the front of said premises, except of brick or stone, with roofs of slate or metal, and will not erect or permit upon any part of said premises any stable of any kind, coal yard, slaughter house, meat shop, tallow chandlery, steam engine, smith shop, forge, furnace, brass foundry, nail or other iron foundry, or any manufacturing of glass, gunpowder, starch, glue, varnish, vitriol, ink, petroleum or turpentine, or any cooper's, carpenter's or cabinet maker's shop, or any establishment for tanning, dressing, preparing or keeping skins, hides or leather, or any brewery, distillery, sugar refinery or bakery, or drinking or lager beer establishment, circus, menagerie or public show or exhibition of animals, railroad depot, railroad stable, car, engine or tenement house, or any other trade, manufactory, business or calling which may be in any way dangerous, noxious or offensive to the neighboring inbabitants, and that no building shall be erected upon said lands, or any of them, which shall contain any alley or entrance running through them for ingress or egress to rear buildings. And it is declared that this covenant is a lien and runs with said lands, and binds all persons seized thereof for the time being."

The defendant's property has a frontage of 153 feet on SeventyFirst street, and on the west immediately adjoins the Hudson River Railroad. The defendant has constructed on her property three modern apartment houses, seven stories high, with two apartments on each floor. Those structures are high-class apartment houses, and they have all the conveniences and all the appliances of the best order of such houses, and externally, in their architecture, they are of a character and appearance corresponding with the first-class dwelling houses in the immediate neighborhood. They are costly buildings, the amount expended in their erection being about $400,000. The houses are completed and ready for occupancy. The sole question presented for consideration on this appeal is whether these structures of the defendant have been put up in violation of the covenant above quoted, and are of such a character as to entitle the plaintiffs to an injunction.

We have had a covenant identical with this before us in the case of White v. Collins Building & Construction Co., 82 App. Div. I, 81 N. Y. Supp. 434, and there the question considered was the following: “Does the covenant against nuisances contained in the deed of * * surviving executors of the last will and testament of Jacob Harsen, M. D., deceased,

dated June 10, 1873, prohibit the construction of a high-grade modern apartment house?” In considering that case we endeavored to ascertain the intention of the parties in making the covenant, and the result was that we construed the words “tenement house" in connection with other interdicted structures and uses of a nature that would injure the general character of the neigh. borhood and make it inappropriate for the residence of refined and prosperous people, and it is said in the opinion that "it is common knowledge that in the year 1873, and prior to that time, modern apart

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ment houses were unknown in the city of New York.” And it is further said:

"An apartment house, the erection of which is contemplated by the defendant, would clearly not be a use of the property which would be dangerous, noxious, or offensive to the neighboring inhabitants. What was clearly contemplated was that a tenement house as then known and in use in the city of New York should not be erected upon the property. The erection of a hotel was not prohibited, nor was the use of the property restricted to dwelling houses so constructed that one dwelling should be under each roof. The restriction was confined to one particular residential use, viz., a tenement house. The fact that hotels, boarding houses, or houses of that character, which were then common in New York, were not prohibited, would seem to show that the parties did not intend to restrict the premises to résidences of a particular kind. What was contemplated was that the building of a tenement house, as then understood in New York, should not be allowed, but the modern apart. ment house is a building entirely distinct from what was then understood as a tenement house."

Those views resulted from the construction given to the covenant itself; but the case came before us in the form of a controversy submitted upon an agreed statement of facts, and there were in that statement concessions of fact which aided in the interpretation of the covenant, and which, to some extent, affected the decision of the court; but in the present case there is evidence of facts of the same character as those appearing, and which were regarded as important in the White Case. That case is authority for the conclusion that the restrictive covenant now under consideration against tenement houses is not to be construed as relating to such first-class apartment houses as the defendant has erected upon her premises, and it is also authority for the proposition that the definition of a tenement house as contained in chapter 908, p. 2273, Laws 1867, does not apply in this case, for that definition of a tenement house is restricted to that particular act.

The recent case of Levy v. Schreyer, 177 N. Y. 293, 69 N. E. 598, is supposed to be in conflict with these views; but we do not so regard it. There was something more in the covenant there than a restriction upon the grantee's right to erect or permit to be "erected or carried on” upon the premises a tenement house. There was also the positive covenant that the grantee would not erect any houses except private dwellings thereon, and that restriction is absent from this covenant. It was regarded as very material by the Court of Appeals. In that case the trial court found that the building erected was not a private residence or private dwelling, and it was upon all of the restrictive covenants that the Court of Appeals held that the plaintiff was entitled to an injunction against the use of the building as a tenement house or for any other purpose than that of a private dwelling or residence. So far as the present case is concerned, we have only the restriction against a tenement house to consider, and we do not regard Levy v. Schreyer as deciding that such costly, commodious, and attractive first-class apartment houses as have been erected by the defendant are to be regarded as tenement houses, within the intention or meaning of the parties, when title was taken under the deeds from Harsen's executors, which contained the restrictive covenant.

The judgment_should be affirmed, with costs. All concur, except VAN BRUNT, P. J., and McLAUGHLIN, J., who dissent.

and 121 New York State Reporter

(92 App. Div. 564.)

DE GRAFF ». LANG.

(Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) 1. BANKRUPTCY-RECOVERY OF PREFERENCE-EVIDENCE OF INSOLVENCY.

The adjudication of the United States court in a bankruptcy proceeding that bankrupt was insolvent at the time a judgment was obtained against her, less than four months before the filing of the petition in bankruptcy, is conclusive in an action by the trustee in bankruptcy to recover the pro

ceeds of a sale of bankrupt's property under an execution on the judgment. Action by William De Graff, as trustee in bankruptcy for Fanny Meng, an adjudged bankrupt, against Rosa C. Lang. Á motion for nonsuit was granted at the close of the evidence, and plaintiff moves for a new trial on a case containing exceptions, ordered to be heard in the Appellate Division in the first instance. Motion granted.

The action was commenced on the 1st day of February, 1902, by the plaintiff as trustee in bankruptcy for one Fanny Meng, an adjudged bankrupt, to recover from the defendant, a judgment creditor of Fanny Meng, the sum of $845.67 received by her from the sheriff of Monroe county, being a part of the proceeds of the sale by said sheriff of the property of Fanny Meng under and by virtue of executions issued upon defendant's judgment and others, which were recovered within four months of the time of the filing by other creditors of Fanny Meng of an involuntary petition in bankruptcy against her, and upon which petition such proceedings were had as resulted in the adjudication in the United States District Court that said Fanny Meng was a bankrupt, the entry of judgment to that effect, and the appointment of the plaintiff as trustee based upon such decree.

Argued before McLENNAN, P. J., and SPRING, WILLIAMS, HISČOCK, and STOVER, JJ.

Harry Otis Poole, for appellant.
H. B. Hallock, for respondent.

McLENNAN, P. J. Fanny Meng was the owner of and engaged in running a hat and fur store in the city of Rochester, N. Y. On the 26th day of December, 1899, four judgments were recovered against her by her three sisters-in-law, respectively, aggregating about $2,615.50. One of said sisters-in-law is the defendant in this action, and her judgment amounted to the sum of $845.67: Executions were immediately issued upon all of said judgments to the sheriff of Monroe county, and on the 2d day of January, 1900, all of the property of Fanny Meng was sold thereunder for the sum of $2,068. "Out of the proceeds of such sale the defendant's judgment was paid in full, as were two of the others, and the balance of the proceeds of such sale, being $4.42, was applied upon the other or fourth execution. On the 6th day of March, 1900, and within four months of the time when such judgments were recovered, an involuntary petition in bankruptcy was filed against Fanny Meng by certain other of her creditors, alleging that she was insolvent and unable to pay her debts at the time the judgments aforesaid were recovered, and asking that she be adjudged a bankrupt. In answer to such petition Fanny Meng denied her insolvency at the time when such judgments were recovered. Neither the defendant nor any of the judgment creditors above referred to were made parties to such proceeding.

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