many months the petition of the city, confers | 5. CoVENANTS 124-BREACH-DAMAGES. upon the railroad priority of right. The order should be affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, and POUND, JJ., concur. Order affirmed. (218 N. Y. 140) In such case, the plaintiffs' right was measured by the depreciation in the value of their land, including such depreciation as would be sustained by reason of the use to which the defendant puts its property; the difference in value between their land with and without the railroad. [Ed. Note.-For other cases, see Covenants, Cent. Dig. 88 225-230, 255, 256, 259; Dec. Dig. 124.] Appeal from Supreme Court, Appellate Di FLYNN v. NEW YORK, W. & B. RY. CO. vision, Second Department. et al. BRADY v. SAME. Action for injunction by Michael W. Flynn against the New York, Westchester & Boston Railway Company and another, and action for injunction by Edwin B. Brady against the New York, Westchester & Boston RailFrom judg (Court of Appeals of New York. May 2, 1916.) ments of the Appellate Division (160 App. [Ed. Note.-For other cases, see Covenants, Div. 906, 907, 144 N. Y. Supp. 1106, 1116), afCent. Dig. § 1; Dec. Dig. 1.] firming judgments in favor of the plaintiffs, the defendant New York, Westchester & Boston Railway Company appeals. Judgments affirmed. 2. COVENANTS S-BUILDING COVENANTS -VALIDITY AND ENFORCEMENT. Restrictive building covenants are valid and enforceable in law and in equity, and all the lots covered thereby are subject to an incumbrance, requiring occupation in accordance therewith, binding upon every subsequent pur-pellant. Edwin L. Kalish, of New York City, chaser having notice of the plan, even though for respondents. his legal title is unrestricted. Under Const. art. 1, § 6, declaring that private property shall not be taken for public use without just compensation, rights based on restrictive building covenants are property rights which cannot be taken for a public use without just compensation, and which make direct and compensational damages which otherwise would be consequential and noncompensational. Louis Marshall, of New York City, for ap POUND, J. In 1906 one Prince owned a tract of land in the city of New Rochelle, Westchester county, which he laid out on a map in 114 lots, fronting on streets. As an inducement to prospective purchasers, and in pursuance of a plan to restrict the lots against nuisances and trades and make it exclusively a residence district, all of the lots thus laid out were sold and conveyed by deeds containing the following covenants: "And the said party of the second part does covenant and agree that the grant and conveyance as aforesaid shall be subject to the follow [Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 221-226; Dec. Dig. S5.] 4. COVENANTS 124–BUILDINGS AND IM-ing covenants, conditions and restrictions, which PROVEMENTS-CONSTRUCTION-ERECTING""BUILDING OR STRUCTURE." shall be binding upon them, their heirs, executors, legal representatives and grantees of the respective parties. "No building or structure for any business purpose whatsoever shall be erected on said premises. The owner of a tract of land laid it out on "That the said party of the second part shall a map in lots fronting on streets, and, as an inducement to purchasers, sold them by deeds, not build or permit to be built on said premises covenanting that no building or structure for any house or dwelling of a value less than $4,500 or being less than two and one-half stories any business purpose whatsoever should be in height, or of the style known as 'flat roof.' erected on the premises. Defendant railroad "No part of said premises shall be used for purchased lots running across the entire southern part of the tract subject to such restric-public or private, or cemetery or place of any hospital, insane, inebriate or other asylum, tions opposite the lots of one of the plaintiff's burial. and adjacent to the premises of the other, and built its railway across such lands partly on an embankment and partly in an open cut, and operated on its tracks many fast electric trains daily. Held, in an action to restrain the main tenance of such structure and the operation of the road, that defendant had violated the covenant, and that plaintiffs were entitled to damages, a "building or structure" being in the wid est sense anything constructed that is erected by art and fixed upon or in the soil composed of different pieces connected together and designed for permanent use in the position in which it is so fixed, and to "erect," meaning not only to raise, but also to build or construct. [Ed. Note. For other cases, see Covenants, Cent. Dig. §§ 225-230, 255, 256, 259; Dec. Dig. 124. For other definitions, see Words and Phrases, First and Second Series, Building; Erect; Structure.] within fifteen feet of any street or street line "No part of any structure erected shall be upon which the lot or lots abut, except the steps, which may project a reasonable distance beyond the structure. "No dwelling shall be erected on any plot less than two lots. ture or structures of any kind or description "No part of any barn, stable or other strucerected upon said premises shall be within sixty feet of the line of the street or avenue on which the lots front, or within twenty-five feet of any side street; nor shall there be erected on any part of said lot any slaughterhouse. smith shop, forge, furnace, steam engine, brass foundry, nail, iron or other foundry or any manufactory of gunpowder, glue, varnish, vitriol, ink, turpentine, or for the tanning, dressing or preparing For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 112 N.E.-58 skins, hides or leather, or any manufactory in accordance with the plan, which is binding whatever; or any ale house, brewery, distillery, upon each subsequent purchaser having nosaloon, liquor store, hotel or inn, or livery stable, tice of the plan, even though his legal title or any other obnoxious, dangerous or offensive business or trade or any building of the character or description known as a tenement house. There shall be no toilet outhouse of any kind or description upon the premises. No closed fence shall be erected on said premises, excepting on the rear line thereof, and that no fence shall be erected on said premises more than four feet high, excepting on the rear line thereof. "No poultry shall be kept upon any part of the premises unless such poultry is retained or inclosed in proper runs or inclosures. "It being understood and agreed that said covenants and conditions shall run with the land, and shall be enforceable both as covenants and conditions, with the right of re-entry in case of breach thereof." Appellant purchased from Prince's gran tees lots numbered from 1 to 38, inclusive, running across the entire southern part of the tract, subject to the above restrictions. Respondent Flynn purchased lots 107 and 108, on which he has erected a house directly across the street from appellant, and the respondent Brady purchased lots 39-42, inclusive, immediately adjacent to appellant's premises. The railway of appellant was built across the restricted lands owned by it, partly on an embankment 25 feet above the surface, which is next to the Brady lots, and partly in an open cut, 17 feet in depth, which is in front of the Flynn property. The railroad is equipped as high-speed electric, operating many trains daily, and its maintenance and operation render respondents' property less valuable than it would be if appellant's property were used exclusively for private dwelling purposes. These actions were instituted to restrain the appellant from constructing and operating its road across said lots, but at the time of the trial the railroad was in operation. The judgments appealed from restrain the maintenance by the appellant of its erections and structures upon the restricted land owned by it and the operation of its road, unless appellant pays Flynn $3,370 and Brady $2,000, respectively, as damages by reason of its violation of the restrictive covenants. [1-3] Appellant contends: (1) That the restrictive covenants upon which respondents rely are, so far as they prohibit the construction and operation of a railroad, against public policy and void; and (2) that they do not, by the language used, prohibit the construction or operation of a railroad. The constitutional provision, "nor shall private property be taken for public use without just compensation" (Const. N. Y. art. 1, § 6), brings us at once to the inquiry as to whether the rights of respondents based on such restrictive covenants are property rights, for no public policy can exist which is contrary to the fundamental law. strictive building covenants have been consistently recognized as valid and enforceable in law and in equity, and it has been held that all the lots covered thereby are subject to an incumbrance requiring occupation Re is unrestricted. Tallmadge v. East River A [4] The appellant has violated the restrictive agreement by "erecting a building or other structure for business purposes." building or a structure is, in the widest sense, anything constructed, i. e., erected by art and fixed upon or in the soil, composed of different pieces connected together and designed for permanent use in the position in which it is so fixed. To erect means not only to raise, but also to build or construct. Century Dictionary. "A thing constructed" may thus be the equivalent in meaning of "a building erected.” We are not now dealing with a penal statute where formal niceties of meaning are invoked in behalf of personal liberty. People v. Richards, 108 N. Y. 137, 15 N. E. 371, 2 Am. St. Rep. 373. To say that the construction of the railroad, whether above, on, or below the surface of the ground, is not within the inhibition of the restrictive covenants is to say that it is enough to keep the word of promise to the ear, and that the surrounding circumstances must not be allowed to aid in ascertaining the fair expressed intent of parties to a contract. out pay pending the trial of charges any member of the police force, and that, if any memcommissioner of the charges referred, he shall ber so suspended shall not be convicted by the be entitled to full pay from the date of suspension, a policeman who on the preferment of a criminal charge against him was suspended without pay, and who after indictment requested and obtained a postponement of the hearing on the charges pending before the police commissioner until the determination of the crimfore the jury was selected, died, and, who durinal charge, and on his second trial, but being his suspension did not engage in any other occupation and was required to report to the station house daily, was entitled to compendate of his death, his request that his trial be sation from the date of his suspension to the postponed not being his own act, but the act of the commissioner, and his death during suspension not precluding his legal representative from recovering the salary payable if he had lived. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 515; Dec. Dig. [5] The right of the property owner is measured by the depreciation in value which his land sustains, including such depreciation as will be sustained by reason of the use to which the railroad puts its property, the difference in value between his land with and without the railroad in operation. South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301, | 186(4).] 68 N. E. 366. The railroad and its use in violation of the restrictive covenants may not be separated in considering the effect upon the owner. The rule for assessing damages applied herein seems to have been correct, and the amount of the award presents no question of law. The judgments should be affirmed, with costs. 4. EVIDENCE 60-PRESUMPTION OF INNO CENCE. A mere criminal charge against one carries with it no implication of guilt, and he is presumed to be innocent of the charge. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 81; Dec. Dig. ~60.] 5. OFFICERS 94 SUSPENSION-COMPENSATION. Suspension from the performance of the duties of an office does not itself work a forfeiture of the right to the salary attached thereto dur WILLARD BARTLETT, C. J., and HIS-ing the period of suspension. Judgment affirmed. (218 N. Y. 124) PEOPLE ex rel. FLYNN v. WOODS, Police Com'r. (Court of Appeals of New York. May 2, 1916.) 1. MANDAMUS 187(2)-DENIAL OF WRITMATTER OF LAW OR DISCRETION-APPEAL. An order of the Appellate Division making it clear that an application for mandamus was denied as a matter of law, and not in the exercise of discretion, is appealable to the Court of Appeals, but, where the order does not state upon what ground the decision is based, and the writ may have been refused as a matter of discretion, the order is not reviewable. [Ed. Note. For other cases, see Mandamus, Cent. Dig. 88 428, 429; Dec. Dig. 187(2); Appeal and Error, Cent. Dig. § 570.] 2. MANDAMUS 187(2)-MATTERS CONSIDERED-OPINION OF APPELLATE DIVISION. Under Code Civ. Proc. § 1237, relating to the judgment roll, as amended by Laws 1913, c. 545, the Court of Appeals, in order to determine whether mandamus was denied as matter of law, and not of discretion, may consider the order appealed from in the light of the opinion of the Appellate Division. [Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 428, 429; Dec. Dig. 187(2); Appeal and Error, Cent. Dig. § 570.] 3. MUNICIPAL CORPORATIONS CHARGE AGAINST POLICE OFFICER SUS PENSION-COMPENSATION-STATUTE. [Ed. Note.-For other cases, see Officers, Cent. Dig. §§ 132, 133, 136-138, 140, 141; Dec. Dig. 94.] Cuddeback, J., dissenting. Appeal from Supreme Court, Appellate Division, First Department. Mandamus by the People of the State of New York, on the relation of Harry E. Flynn, as administrator of William H. Flynn, deceased, against Arthur H. Woods, as Commissioner of Police of the City of New York. From an order of the Appellate Division (169 App. Div. 649, 155 N. Y. Supp. 431) reversing an order of the Special Term which granted a motion for a peremptory mandamus requiring the Police Commissioner of the City of New York to certify so much of a pay roll as concerns the salary of the relator's intestate and denying the motion, the relator appeals. Reversed, and order of Special Term affirmed. Charles Caldwell, of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, John F. O'Brien, and Elliot S. Benedict, all of New York City, of counsel), for respondent. SEABURY, J. This appeal presents the question whether the police commissioner of the city of New York should be required to certify to the comptroller of the said city 186(4)- the pay roll of the police department of that city so far as it concerns the salary of PatrolUnder Greater New York Charter (Laws man Flynn from the 12th day of March, 1901, c. 466) § 292, providing that the police 1914, to the 20th day of April, 1915, in the commissioner shall have power to suspend with- sum of $1,536. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3-5] The claim of the relator is based upon section 292 of the Greater New York Charter. So much of that section as is relevant to the question presented for determination provides as follows: The facts are undisputed. On March 11, | of discretion, the order is appealable to this 1914, Flynn, a patrolman in the police de- court. In the present case, while the order partment, was charged with shooting a citi- is silent upon the subject and fails to indizen and arresting a citizen upon a false cate whether the application was denied as charge. Upon the making of said charges a matter of law or in the exercise of discreFlynn was suspended without pay. The hear- tion, it is evident from the opinion of the ing upon the charge was adjourned. Prior court that the application was denied solely to the date of adjournment Flynn was in- as a matter of law, and not in the exercise dicted for assault in the first degree upon of discretion. It is therefore an order which the facts which formed the basis of the main is appealable to this court. People ex rel. charge before the police commissioner. After Perrine v. Connolly, 217 N. Y. 570, 112 N. indictment Flynn through his attorney re- E. 579. quested that action upon the charge pending before the police commissioner should be deferred until the determination of the criminal charge. This request was granted, and the hearing before the police commissioner was postponed. In December, 1914, Flynn was tried upon the indictment. Upon the trial the jury disagreed. The second trial was set for April, 1915, and after the trial had been commenced, but before the jury was selected, Flynn died. During the period of his suspension, the accused officer did not engage in any other occupation or earn any other compensation. During this whole period he was required to and did report at the station house daily. It is not claimed that any one was appointed to his place. Not having been convicted upon the charges pending before the police commissioner, his administrator brings this proceeding to recover that portion of Flynn's salary which would have been paid to him if he had not been suspended from March 12, 1914, to the date of his death on April 20, 1915. [1, 2] On behalf of the respondent it is insisted that the order of the Appellate Division is not appealable to this court, because the order does not state that the application was denied as a matter of law, and not in the exercise of discretion. Where the order of the Appellate Division makes it clear that the application was denied as a matter of law, and not in the exercise of discretion, the order is appealable to this court. Where the order does not state upon what ground the decision is based, and the writ may have been refused as a matter of discretion the order is not the subject of review. People ex rel. Jacobus v. Van Wyck, 157 N. Y. 495, 52 N. E. 559; People ex rel. Steinson v. Board of Education, 158 N. Y. 125, 52 N. E. 722. Before the recent amendment to section 1237 of the Code of Civil Procedure the Court of Appeals was not at liberty to look into the opinion of the Appellate Division for the ground upon which it refused the writ of mandamus. People ex rel. Jacobus v. Van Wyck, supra. Since that amendment the order appealed from may be considered in the light of the opinion of the Appellate Division. Richards v. Wells Fargo Express Co., 215 N. Y. 351, 355, 356, 109 N. E. 482. Where the order does not state the ground of the decision, but it appears from the opinion of the Appellate Division that the order was denied as a matter of law, and not in the exercise "He [the police commissioner] shall have pow er to suspend without pay, pending the trial of charges, any member of the police force. If any member of the police force so suspended shall not be convicted by the police commissioner of the charges so preferred, he shall be entitled to full pay from the date of suspension, notwithstanding such charges and suspension." It does not seem to be disputed that according to the letter of this section the relator is entitled to recover, but it is claimed by the learned counsel for the respondent that under the circumstances shown to exist in this case the claim of the relator is not within the spirit or true meaning of the sec tion of the charter referred to above. This latter view has received the sanction of the learned Appellate Division. In support of this view it is said that the statute in question was enacted for the benefit of the members of the police force who had been suspended under charges and to protect them from the possible injustice of being suspended indefinitely without pay and without being afforded an opportunity of an acquittal, and that the suspension having been made at the request of the accused oflicer, "the test which under the statute was to determine whether or not the suspended officer was to be paid his salary was made impossible by this officer's own act in requesting a postponement of his trial, and by his death before the event occurred." We think that there is nothing in any of these circumstances which justify failing to give effect to the provision of the statute. The mere charge against the officer carried with it no implication of guilt. He was presumed to be innocent of the charge made against him. Having been indicted, his request to the police commissioner for a postponement of the trial to the charges pending before that official until the determination of the criminal charge was not an unreasonable request. The police commissioner was not required to grant the request, but he did so, evidently regarding it as reasonable and proper. The fact that the accused officer was suspended without pay upon his own request until the determination of the criminal charge against him of itself did not op 917 having been made against an officer and an indictment having been based upon the same charge, there was no impropriety in the accused asking that he be suspended until the charge was determined, and that his trial before the police commissioner should await the determination of the criminal charge. In making this request the accused only asked what the statute permitted the police commissioner to grant. The request of the accused would have been ineffective unless the police commissioner had sanctioned and ordered the suspension. The suspension was not less the act of the police commissioner because it was made upon the request of the accused officer. Whether the suspension was by the police commissioner upon his own motion or upon the request of the accused is immaterial. In either event the right to recover full pay from the date of the suspension was not lost unless the accused was subsequently convicted by the police commissioner. erate to make the provision of the charter cated upon such a circumstance. A charge inapplicable. That section of the charter contemplates that, when one is suspended without pay and shall not be convicted by the police commissioner, he shall be entitled to pay from the date of suspension. Both the letter and the spirit of the statute make it clear that the right to recover pay shall be forfeited only in the event of a conviction. The fact that an adjournment of the trial before the police commissioner was had upon the request of the accused officer for reasons which the police commissioner deemed proper and sufficient cannot fairly be considered as equivalent to a subsequent conviction. Nothing occurred after the accused officer was suspended which operated to put him in a more disadvantageous position than he was in at the time of his suspension. It is plain from the statute that the right to pay was not to be forfeited merely by suspension, but only in the event that suspension should be followed by conviction. If the fact that the accused officer requested suspension itself operates to forfeit the right to recover pay, then the accused could not recover his back pay even if he was subsequently acquitted of the charges. Such an interpretation would derrive the statute of any reasonable meaning. Suspension from the performance of the duties of an office does not itself work a forfeiture of the right to the salary attached to the office during the period of suspension. Wardlaw v. Mayor, etc., of New York, 137 N. Y. 194, 200, 33 N. E. 140. Nor does the death of the officer during the period of suspension preclude the legal representative of the deceased officer from recovering the salary which would have been payable to the suspended officer if he had lived. The construction of the statute contended for by the respondent puts a more limited meaning upon it than we think the Legislature intended it should have. That section of the charter vests the power to suspend in the police commissioner and provides that, if the officer so suspended "shall not be convicted by the police commissioner," etc., he shall be entitled to recover his back pay. There is no suggestion either in the language of the statute or in the reasons which prompted its enactment that indicates that it should become inoperative if the police commissioner suspended the accused officer at his request. If the accused officer had been suspended by the police commissioner upon his own motion, and not at the request of the accused, and the accused died before the date set for the trial, it is evident that his back pay could be recovered. The question presented for determination therefore marrows itself to The jury failed to convict the acA date was then set for a second the inquiry whether an accused officer for- trial of the case. feits the right to recover back pay because ing transpired which destroyed the presumpDuring all this time nothhe requests suspension during the pendency tion of the innocence of the accused offiof the charge against him. We are of the cer. Upon the date of his death he was, in opinion that a forfeiture cannot be predi- the eye of the law, innocent of any offense, It is urged that the statute was never intended to apply to a case "in which an accused officer has by his own act, and for his advantage, created a condition under which he could never be convicted or acquitted of the charge against him." This is doubtless true, but there is nothing in the fact that the police commissioner suspended the accused upon his request, rather than upon his own motion, which created a condition under which the accused could not be either convicted or acquitted of the charge against him. The fact which prevented the final determination of the charge against the accused was his death, and that fact did not destroy the right to his salary which had accrued prior to that time. The act of suspension was the act of the police commissioner, not the act of the accused. It rested entirely in the discretion of the police commissioner whether or not he would suspend the accused. It was competent for him to impose any lawful condition which he might regard as proper, with a view to requiring a prompt disposition of the pending charge. We find nothing in the circumstances of this particular case which requires or justifies the application of a different rule from that not tried before the police commissioner beprescribed in the statute. The accused was cause that official for good reasons adjourned his trial until the determination of the It criminal charge pending against him. course. cused. |