Curry v. Keil

The defendant Keil, an executor, and who is also the general guardian of an' infant owner of real estate situate in the city of New York, entered into an agreement with the plaintiff, an owner of another piece of property in the city of New York, and stipuJated that the infant’s property should not be used or rented for a specific purpose. That was the whole of the agreement, except a provision for a consideration. No estate or term or right of any kind in the land was acquired by the plaintiff, and the effect of the agreement was.only to attempt to place- upon the infant’s land a restriction burdensome to the property, greatly impairing its value and reducing the income to be derived from it as rent. There is nothing whatever to show that Keil, . as éxecutor, had any power under the terms of a will to make such a contract binding upon the infant’s real estate; and merely as executor, without specific authority, no one will contend that he had such right. As guardian he possibly may have had the.power to make a lease, but he could not by an independent contract impose restrictions upon the infant’s property and impair his estate by a mere covenant against use for *376tlie benefit of a stranger. He could not make such' a contract as against the infant, nor could he bind McGovern, the present tenant and lessee, who is in possession, without notification of any kind of the existence of the contract. If the contract is valid, Keil is liable in damages individually to the plaintiff; but no equitable relief of the character sought for could be granted by final judgment, and, therefore, the court below was right in denying the motion for an injunction. The order appealed from must be affirmed,' with costs.

Van Brunt, .P. J., Williams, O’Brien and Ingraham, JJ., concurred. ,

Order affirmed, with ten dollars costs and disbursements.