Amite County Brief in Support of and Motion to Dismiss
Public Court Documents
February 20, 1985
23 pages
Cite this item
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Brief Collection, LDF Court Filings. Kemp v. Rubin Record on Appeal, 1946. 8c931de1-b99a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2cda9bb1-470b-4f34-a18a-1e12777a9a96/kemp-v-rubin-record-on-appeal. Accessed August 19, 2025.
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^ujirrmr (Uourt of thi> BtaU of 2mo fork
A p p ella te Division— Second Departm ent
H arold F. K e m p , S arah M. K e m p , J o h n H. L utz and I rene
L utz, on behalf of themselves and all others equally in
terested,
Plaintiffs-Respondents,
against
S o ph ie R u b in a n d S am uel R ichardson,
Defendants-Appellants,
RECORD ON APPEAL
A ndrew I). W einberger,
Attorney for Defendant-Appellant
Samuel Richardson,
67 West 44th Street,
New York 18, N. Y.
P aul R. S ilverstein ,
Attorney for Defendant-Appellant
Sophie Rubin,
89-31 161st Street,
Jamaica, N. Y.
W ait, W ilson & N ew ton ,
Attorneys for Plaintiff s-Respondents,
11 Park Place,
New York 7, N. Y.
G r o s b y P r e ss, In c ., 30 F e rry St., N. Y. C.— B Eekm an— 3-2336-7-3
I N D E X
PAGE
Statement Under Rule 234 ........................... 1
Notice of Appeal of Defendant Samuel Rich
ardson ........................................................ 3
Notice of Appeal of Defendant Sophie Rubin 5
Summons ...................................................... 7
Amended Complaint...................................... 8
Exhibit A, Annexed to Complaint....... 14
Exhibit B, Annexed to Complaint....... 20
Answer of Defendant Sophie Rubin to
Amended Complaint ................................. 27
Answer of Defendant Samuel Richardson to
Amended Complaint.................................. 35
Judgment ...................................................... 38
Case and Exceptions .................................... 41
Defendant Richardson’s Motion to Dis
miss Complaint .................................. 88
Defendant Rubin’s Motion to Dismiss
Complaint ........................................... 121
Defendant Rubin’s Motion to Dismiss
Complaint Renewed ........................... 180
Opinion by Mr. Justice Livingston ............. 184
Order Settling Case ...................................... 191
Stipulation Waiving Certification .............. 193
Order Filing Record in Appellate Division .. 193
11
P l a in t if f s ’ W itnesses
PAGE
Harold F. Kemp
Direct ..................................................... 42
Cross (by Mr. Weinberger) .................. 52
Cross (by Mr. Silverstein) .......... 54
John H. Lutz
Direct ................................ 65
Cross (by Mr. Silverstein) .................... 69
D efendant R u b in ’s W itn esses
Irving L. Schuh
Direct ........................................................ 128
Ye,ra Gt. Jenkins
D irec t....... '.............................................. 137
Beasley D. Kelly
Direct ..................................................... 140
Recalled
Direct ......................................................
Helen Levy
Direct ..................................................... 147
Ferdinand W. Buermeyer
Direct ..................................................... 148
William E. Taube
Direct ................... 152
Fred Williams
Direct ..................................................... 156
Andrew Reis
Direct ..................................................... 158
Cross ...................................................... 162
Redirect ................................................... 164
Ill
P l a in t if f s ’ E x h ib it s :*
Admitted
Page
1— Photograph of home of Harold F, Kemp,
one of the plaintiff-respondents ............. 44
2— A, 2-B, 2-C and 2-D. Photographs of the
two houses to the north of Harold F. Kemp
on the same side of the street and of the
remaining houses within the block between
112th Avenue and 114th Avenue in St.
Albans, New Y ork ......... ........................... 45
3—‘Tax map of the City of New York showing
the location of the premises in issue ....... 46
4— Agreement of restrictive covenant dated
January 10, 1939 signed by Harold F.
Kemp, Sarah M. Kemp and Sophie Rubin 46
5— Agreement of restrictive covenant dated
January 10,1939 affecting the side of 177th
Street wherein John H. Lutz and Irene
Lutz reside ............................................... 50
6— A, 6-B and 6-C. Photographs of houses
on side of 177th Street wherein John H.
Lutz and Irene Lutz reside .................. . 66
7— Photograph of 177th Street looking north
from 114th Avenue toward 112th Avenue,
St. Albans, New York ............................. 66
8— Sketch upon which certain lots are shaded
in red, representing those lots covered by
the agreements of restrictive covenant .. 68
* Omitted pursuant to Order Settling Case, herein
printed at pages 191-2.
IV
D ependant R u b in ’s E x h ib it s :*
Admitted
Page
A For Identification—Certified copy of writ
ing dated July 26, 1943 recorded in Office
of the Register of Queens County, August
26, 1943 in Liber 4734 of 'Conveyances,
page 467 ................................................... 132
B For Identification—Writing dated June 2,
1941, recorded January 10, 1942 in Office
of the Register of Queens County, January
10,1942 in Liber 4513 of Deeds, page 293 .. 132
C-—Map of Addisleigh section of St. Albans
containing certain portions shaded in red
representing houses occupied by colored
p e r s o n s ...................................................................... 144
C.l—List with addresses of colored families
residing in Addisleigh section of St. Al
bans, New York ........................................ 144
D—List of colored residents in Addisleigh
area of St. Albans, New York with ad
dresses ....................................................... 171
* Omitted pursuant to Order Settling Case, herein
printed at pages 191-2.
j&uprrmr (Emtrf o f tlio §>fcttr o f 2m o fo r k
A p p ella te Division—Second D epartm ent
---------- ♦----------
H arold F. K e m p , S abah M. K e m p , J o h n H. L utz
and I rene L u tz , on b e h a lf of th em selv es and
all others equally interested,
Plaintiffs-Respondents,
against
S o ph ie R ubin a n d S am uel R ichardson ,
Defendants-Appellants.
--- ---- --------4----------------
Statement Under Rule 234
This action was commenced on May 8,1946.
The summons and complaint were served on de
fendant Sophie Rubin on May 8,1946.
The answer of defendant Sophie Rubin was
served on June 4, 1946.
The first amended answer of defendant Sophie
Rubin was served on July 1, 1946.
The amended complaint was served on defend
ant Sophie Rubin on July 5,1946.
The amended answer of defendant Sophie Rubin
was served on July 24,1946.
There has been a change of parties in this action
in that the summons and complaint designated as
defendants the fictitious persons “ John Doe and
Jane Roe” . Thereafter, and on July 5, 1946
the amended complaint dropped the defendants
2
Statement Under Buie 234
“ John Doe and Jane Roe” and designated Sophie
Rubin as sole defendant.
On August 29th a motion was made by Samuel
Richardson pursuant to Civil Practice Act 193 sub
division 3, for leave to intervene as a party in in
terest, which motion was granted by order of Mr.
Justice Thomas C. Kadien on the 13th day of Sep
tember 1946.
The amended complaint was served upon de-
5 fendant Samuel Richardson on the 5th day of
September, 1946.
The answer of defendant Samuel Richardson
was served on the 26th day of September, 1946.
6
3
Notice o f Appeal o f D efendant Samuel
Richardson
SUPREME COURT OF THE STATE
OF NEW YORK
County of Qu een s
--------------- 1----------------
H arold F. K e m p , S abah M. K e m p , J o h n H . L utz
an d I ren e L utz , on b e h a lf of th em selv es a n d
a ll o th e rs eq u a lly in te re s te d , g
Plaintiffs,
against
7
S o ph ie R u b in a n d S am uel R ichardson ,
Defendants.
---------- $----------
S ir s :
P lease take notice that the defendant Samuel
Richardson hereby appeals to the Supreme Court,
Appellate Division, Second Department, from the
judgment of this Court in this action, entered in g
the office of the Clerk of the County of Queens on
March 1,1947 in favor of the plaintiffs and against
the defendants Samuel Richardson and Sophie
Rubin, permanently restraining and enjoining the
said Sophie Rubin until December 31, 1975 from
permitting the use or occupancy by, or selling,
conveying, leasing, renting or giving to Samuel
Richardson, a Negro, or to any person or persons
of the Negro race, blood or descent, the premises
112-03 177th Street, St. Albans, New York, and
permanently restraining and enjoining the said
Samuel Richardson until December 31, 1975 from
4
Notice of Appeal of Defendant Samuel
Richardson
using or occupying or buying, leasing, renting, or
taking a conveyance or gift from the defendant
Sophie Eubin or others of the premises 112-03
177th Street, St. Albans, N. Y. and appeals from
each and every part of said judgment as well as
from the whole thereof.
Dated, New York, March 25, 1947.
11 Yours, etc.,
A ndrew D, W einberger ,
Attorney for Defendant Samuel
Richardson,
67 West 44th Street,
New York 18, N. Y.
To:
W ait , W ilson & N ew ton , Esqs.,
Attorneys for Plaintiffs,
11 Park Place,
New York City.
1 - j
P aul E. S ilv erstein , Esq.,
Attorney for Defendant Sophie Rubin,
89-31161st Street,
Jamaica, N. Y.
P aul L ivoti, Esq.,
Clerk of Queens County.
Notice o f Appeal o f Defendant, Sophie Rubin
SUPREME COURT
Q u een s C ounty
---------- ♦-----------
H arold P . K e m p , S arah M. K e m p , J o h n H . L utz
and I rene L utz , on behalf of themselves and
all others equally interested,
Plaintiffs,
against
S o ph ie R u b in an d S am uel R ichardson ,
Defendants.
---------- ♦------ ---- -
S ir s :
P lease take notice that the defendant, Sophie
Rubin, hereby appeals to the Supreme Court,
Appellate Division, Second Department, from
the judgment of this Court in this action, entered
in the office of the Clerk of the County of Queens
on March 1, 1947, in favor of the plaintiffs and
against the defendants, Sophie Rubin and Samuel
Richardson, permanently restraining and enjoin
ing the said Sophie Rubin, until December 31,
1975, from permitting the use or occupancy by, or
selling, conveying, leasing, renting or giving to
Samuel Richardson, a negro, or to any person or
persons of the negro race, blood or descent, the
premises 112-03 177th Street, St. Albans, New
York, and permanently restraining and enjoining
the said Samuel Richardson until December 31,
1975, from using or occupying or buying, leasing,
6
Notice of Appeal of Defendant, Sophie Rubin
renting, or taking a conveyance or gift from the
defendant Sophie Rubin, or others, of the prem
ises 112-03 177th Street, St. Albans, N. Y. and
appeals from each and every part of said judg
ment, as well as from the whole thereof.
Dated: Jamaica, New York, April 1, 1947.
Yours, etc.,
y j P aul R . S ilv erstein ,
Attorney for Defendant,
Sophie Rubin,
Office & P. 0. Address,
89-31 161st Street,
Jamaica, New York.
To:
W ait , W ilson & N ew to n , Esqs.,
Attorneys for Plaintiffs,
11 Park Place, New York City.
A ndrew D. W einberger , Esq.,
pg Attorney for Defendant,
Samuel Richardson,
67 West 44th St., New York City.
P aul L ivoti, Esq.,
Clerk of Queens County.
Summons
SUPREME COURT OF THE STATE
OF NEW YORK
C ounty of Qu een s
--------------- 1---------------
H arold F. K e m p , S arah M. K e m p , J o h n H. L utz
an d I rene L utz , on b e h a lf of them selves a n d
a ll o th e rs eq u a lly in te re s te d ,
Plaintiffs,
against
S o ph ie R u b in , J o h n D oe a n d J ane R oe, th e la s t
tw o n am ed b e in g fic titio u s, t ru e n am es b e in g
unknow n, th e p e rso n o r p e rso n s in te n d e d being
in n e g o tia tio n to v io la te th e a g reem en t f o r r e
s tr ic tiv e co v en an t th e su b jec t of th is ac tion ,
Defendants.
--------------- 4----------------
Plaintiffs designate Queens County as the place
of trial.
To the above named Defendant:
You are hereby summ oned to answer the com
plaint in this action, and to serve a copy of your
answer, or, if the complaint is not served with
this summons, to serve a notice of appearance, on
the Plaintiffs’ Attorney within twenty days after
the service of this summons, exclusive of the day
of service; and in case of your failure to appear,
or answer, judgment will be taken against you
8
by default, for the relief demanded in tbe com
plaint.
Amended Complaint
Dated, May 6th, 1946.
23
W ait , W ilson & N ew ton ,
Attorneys for Plaintiffs,
Office and Post Office Address :
11 Park Place,
New York 7, N. Y.
Amended Complaint
SUPREME COURT
Qu een s C ounty
---------- +---------—
[SAME TITLE]
---------- +----------
The plaintiffs hy Wait, Wilson & Newton, their
- - attorneys, complaining of the defendants for their
amended complaint allege:
1. That on or about the 10th day of January,
1939, the plaintiffs and the defendant Sophie
Rubin and others being residents and owners of
lots in the section of St. Albans, Queens County,
New York, known as Addisleigh, executed in two
instruments, an agreement for a restrictive cove
nant of the lands known as Blocks 12631 and 12632
of Section 51, Land Map of Queens County, which
restrictive covenants were duly recorded in the
office of the Register of the County of Queens in
9
Liber 4146 at pages 394, and 399 of Conveyances,
on January 2, 1940, at 10:13 A. M., indexed under
section 51 in Blocks 12631 and 12632, which in
struments are annexed hereto and made a part
hereof as Exhibits A and B.
2. That the plaintiffs Harold F. Kemp and
Sarah M. Kemp are the owners in fee and the
occupants of the premises known as 112-59 177th
Street, St. Albans, New York, which premises
have a frontage of 60 feet on 177th Street, and 26
have a depth of 100 feet on either side, being
known as Lot 4 in Block 12631 of Section 51 on
the Land Map of the County of Queens.
3. That John H. Lutz and Irene Lutz are the
owners in fee and the occupants of the premises
known as 112-20 177th Street, St. Albans, New
York, which premises have a frontage of 45 feet
on 177th Street and a depth of 100 feet on either
side, being known as Lot 46 in Block 12632 of
Section 51 on the Land Map of the County of
Queens. ~„2<
4. On information and belief that the defendant
Sophie Rubin is the owner in fee and one of the
occupants of premises known as 112-03 177th
Street, St. Albans, New York, which premises
have a frontage of 40 feet on 177th Street and a
depth of 100 feet on either side, being known as
Lot 28 in Block 12631 of Section 51 on the Land
Map of the County of Queens.
5. That the plaintiffs Harold F. Kemp, Sarah
M. Kemp, John H. Lutz and Irene Lutz and the
Amended Complaint ~“0
10
28 Amended Complaint
defendant Sophie Rubin, duly signed and acknowl
edged the agreement for the covenant aforesaid
in paragraph 1 of this complaint.
6. That the aforesaid agreement for restrictive
covenant provided as follows:
“ Whereas the said parties hereto desire,
for their mutual benefit as well as for the
best interests of the said community and
neighborhood, to improve and further the
interests of said community.
Now therefore, in consideration of the
premises and mutual promises and the sum
of One Dollar ($1.00) each to the other in
hand paid, and other valuable consideration,
the parties hereto do hereby create, impose
and establish, and do hereby mutually cove
nant, promise and agree each with the other
and for their respective heirs, successors and
assigns, that no part of the land now owned
by the parties hereto, a more detailed de
scription of said property being given after
the respective signatures hereto, shall ever
be used or occupied by, or sold, conveyed,
leased, rented, or given, to Negroes or any
person or persons of the Negro race or blood
or descent. This covenant shall run with
the land and bind the respective heirs, suc
cessors, and assigns of the parties hereto
until December 31st, 1975.”
7. On information and belief that the defend
ant Sophie Rubin has entered into negotiations
with persons of the Negro race for the sale of
11
the premises owned in fee by her and known as
112-03 177th Street, St. Albans, New York.
8. On information and belief that the defend
ant Sophie Rubin has made a contract of sale
with, and received a deposit from a person or
persons of the Negro race, for the sale of the
premises known as 112-03 177th Street, St. Albans,
New York.
9. On information and belief that the defend- 32
ant Sophie Rubin intends to carry out the ne
gotiations for the sale of the premises known as
112-03 177th Street, St. Albans, New York, and
to carry out the sale of said premises to a per
son or persons of the Negro race.
10. That said sale of the said premises 112-03
177th Street, St. Albans, New York, would be in
violation of the agreement for restrictive cov
enant duly recorded and mentioned in paragraph
1 of this complaint, and which the defendant So
phie Rubin duly signed and is a party thereto.
33
11. That the premises owned by the plaintiffs
John H. Lutz, Irene Lutz, Harold P. Kemp and
Sarah M. Kemp are improved with private dwel
lings of a high class and of great value similar
to a large number of similar residences in the
said section known as Addisleigh.
12. That the houses of the plaintiffs Harold P.
Kemp, Sarah M. Kemp, John H. Lutz and Irene
Lutz are of large rental value and are desirable
residences, but that said rental values and said
desirability as residences, as well as their fee
Amended Complaint < 5 X
12
value depends wholly upon the exclusion from
the vicinity, and especially from the premises
owned and occupied by plaintiffs and defendant
Sohpie Eubin, of persons who are Negroes or
persons of the Negro race or blood or descent.
13. That the plaintiffs entered into the agree
ment for restrictive covenant believing that by
reason thereof the occupancy of all of the build
ings owned by them and the other parties to
35 the agreement for restrictive covenant, would
be restricted as provided for in said agreement.
14. That plaintiffs will suffer substantial dam
age if the conveyance or transfer intended by the
defendant Sophie Eubin is permitted to be com
pleted.
15. That plaintiffs have no adequate remedy
at law and would suffer great pecuniary loss and
will be substantially and irreparably injured and
damaged and will suffer great injuries which
will be difficult of ascertainment unless the in-
° junction prayed for herein is granted.
W herefore , plaintiffs demand judgment that
the defendant Sophie Eubin be permanently, and
pending the hearing and determination of this
action, temporarily, restrained and enjoined from
permitting the use or occupancy by, selling, con
veying, leasing, renting or giving to, Negroes or
to any person or persons of the Negro race or
blood or descent until December 31st, 1975, the
said premises 112-03 177th Street, St. Albans,
New York, and for such other and further relief
Amended Complaint
13
to plaintiffs as to the Court may seem just and
Amended Complaint
proper.
W a it , W ilson & N ew to n ,
Attorneys for Plaintiffs,
Office & P. 0. Address,
11 Park Place,
Borough of Manhattan,
New York City.
(Duly verified on July 3, 1946 by John H. and
Irene Lutz, Sarah M. Kemp and Harold F. Kemp 38
as plaintiffs.)
39
14
EXHIBIT A, ANNEXED TO AMENDED
COMPLAINT
Deed 4146 Page 399
A greement for R estrictive Covenant
This indenture made this 10th day of January,
1939, by and between the undersigned, all being
residents of Queens County, New York, and own
ers of real estate situated therein, witnesseth
42 that;
Whereas the said parties hereto are owners of
real estate situated in Queens County, being in
the block bounded on the north by 112th Avenue,
on the east by 178th Street, on the south by 114th
Avenue, and on the west by 177th Street, and being
in Block No. 12631, Land Map of the County of
Queens, and
Whereas the said parties hereto desire, for
their mutual benefit as well as for the best inter
ests of the said community and neighborhood, to
improve and further the interests of said com-
42 munity.
Now therefore, in consideration of the premises
and mutual promises and the sum of One Dollar
($1.00) each to the other in hand paid, and other
valuable consideration, the parties hereto do
hereby create, impose and establish, and do hereby
mutually covenant, promises and agree each with
the other and for their respective heirs, succes
sors and assigns, (that no part of the land now
owned by the parties hereto, a more detailed
description of said property being given after
the respective signatures hereto, shall ever be
40
15
used or occupied by, or sold, conveyed, leased,
rented, or given, to Negroes or any person or
persons of the Negro race or blood or descent.
This covenant shall run with the land and bind
the respective heirs, successors, and assigns of
the parties hereto until December 31st, 1975.
It is understood that the holders of mortgages
affecting the premises owned by the undersigned
are omitted from this agreement, but this shall
not affect the validity of this agreement.
Name Address
Sophie Rubin 112-03 177 St
James Sovagl 112-35 177 St
Roger R. Grillon 112-11 177th St
Emily Nonni 112-23 177th St
Victor J. Jenkins 112-07 177th Street
Arthur Beck 112-27 177th St
George E. Baer 112-18 178th St.
Michelle G. Grillon 112-18 178th St.
Edward A. Canter 112-26 178th St.
Hattie W. Canter 112-26 178th St.
Harry C. Zimmer 112-22 178th St.
(illigible) 177-15 114th Avenue
Deed 4146 Page 400
Bessie A. Scott 112-44 178 St. St. Albans
W. S. Kaufmann 112-40 178 St., St. Albans
Harold F. Kemp 112-89 177th St., St. Albans
Sarah M. Kemp 112-59 177th St.
Arthur Levey 112-05 178th Place, St. Albans
Vera G. Jenkins 112-07 177th Street
, Exhibit A, Annexed to Amended Complaint
16
Deed 4146 Page 401
S tate of N ew Y ork
'County of Qu een s
On the 25th day of September, one thousand
nine hundred and thirty-nine before me came
Sophie Rubin to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknowledged that she executed
47 the same.
F rank J. M enig
Notary Public: Queens County
Reg. #3865, Clerks #3439
Term exp-3-30-40
S tate of N ew Y ork
C ounty of Qu eens
On the 25th day of September, one thousand
nine hundred and thirty-nine before me came
48 James Savage to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknoweldged that he executed the
same.
F rank J. M enig
Notary Public: Queens County
Reg. #3865, Clerks #3439
Term expires 3/30/40
Exhibit A, Annexed to Amended Complaint
17
Exhibit A, Annexed to Amended Complaint 49
S tate of N ew Y ork )
yc«c« •
'County of Qu een s y *
On the 28th day of September, one thousand
nine hundred and thirty-nine before me came
Harold F. Kemp and Sarah M. Kemp to me
known to be the individuals described in, and who
executed, the foregoing instrument, and acknowl
edged that they execute the same.
F rank J . M enig
Notary Public: Queens County
Reg. No. 3865, Clerk’s No. 3439
Term expires 3/30/40
S tate of N ew Y ork
■County of Qu een s
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came Arthur
P. Beck the subscribing witness to the foregoing
instrument, with whom I am personally ac
quainted, who, being by me duly sworn, did depose 51
and say that he resides at 112-27 177th St., St.
Albans, in Queens County; that he knows Emily
Nonni to be the individual described in, and who
executed, the foregoing instrument; that he, said
subscribing witness, was present and saw Emily
Nonni execute the same; that he, said witness, at
the time subscribed his name as witness thereto.
R egina J . S chm idt
Notary Public: Queens County
Co. Clk’s #3671, Reg. #3452
Term exp. 3/30/1940
18
Exhibit A, Annexed to Amended Complaint
Deed 4146 Page 402
S tate of N ew Y ork
‘County of Qu een s
On the-21st day of October, one thousand nine
hundred and thirty-nine before me came Roger R.
Grillon and Michelle G. Grillon and Arthur Beck
to me known to be the individuals described in,
and who executed, the foregoing instrument, and
53 acknowledged that they executed the same.
R egina J . S chm idt
Notary Public: Queens County
Co. Clk No. 3671, Reg. No. 3453
Term expires 3/30/1940
S tate of N ew Y ork
C ounty of Q u eens
On the 24th day of October, one thousand nine
r hundred and thirty-nine before me came Victor
J. Jenkins and Vera G. Jenkins to me known to be
the individuals described in, and who executed,
the foregoing instrument, and acknowledged that
they executed the same.
R egina J . S chm idt
Notary Public: Queens County
Co. Clk. No. 3671, Reg. No. 3452
Term expires 3/30/1940
7
RESTRICTIVE COVENANT
Premises: Addisleigh
The land affected by the within instrument lies
in Section 51 in Bloch 12631 on the Land Map of
the County of Queens
J. N.
R. & R. to :
Mary McKeon
Room 513
163-18 Jamaica Avenue
Jamaica, New York
Recorded in the Office of the Register of the
County of Queens, in Liber No. 4146 Page 399 of
Conveyances on Jan. 2,1940 at 10:13 A. M. and in
dexed under Section 51 Block 12631 on the Land
Map of the County of Queens.
Bernard M. Patten
Register
Exhibit A, Annexed to Amended Complaint
20
58
EXHIBIT B, ANNEXED TO AMENDED
COMPLAINT
Deed 4146 Page 394
A greem ent F or R estrictive Covenant
This indenture made this 10th day of January,
1939, by and between the undersigned, all being
residents of Queens County, New York, and own
ers of real estate situated therein, witnesseth
that;
59 Whereas the said parties hereto are owners of
real estate situated in Queens County, being in
the block bounded on the north by 112th Avenue,
on the east by 177th Street, on the south by 114th
Avenue, and on the west by 176th Street, and
being in Block No. 12632, Land Map of the County
of Queens, and
Whereas the said parties hereto desire, for their
mutual benefit as well as for the best interests of
the said community and neighborhood, to improve
and further the interests .of said community.
60 Now therefore, in consideration of the premises
and mutual promises and the sum of One Dollar
($1.00) each to the other in hand paid, and other
valuable consideration, the parties hereto do
hereby create, impose and establish, and do hereby
mutually covenant, promise and agree each with
the other and for their respective heirs, succes
sors and assigns, that no part of the land now
owned by the parties hereto, a more detailed de
scription of said property being given after the
respective signatures hereto, shall ever he used
or occupied by, or sold, conveyed, leased, rented,
or given, to Negroes or any person or persons of
21
the Negro race or blood or descent. This cove
nant shall run with the land and bind the re
spective heirs, successors, and assigns of the
parties hereto until December 31st, 1975.
It is understood that the holders of mortgages
affecting the premises owned by the undersigned
are omitted from this agreement, but this shall
not affect the validity of this agreement.
62
Exhibit B, Annexed to Amended Complaint
63
W insom e H olding C oup.
By Herman Kirschbaum, Treas.
(Seal)
Description
Corner formed by intersection
of southerly side of 112th Ave.
and westerly side of 177th St.,
being 144 feet on 177th St. and
100 feet deep on each side.
Name
John H. Lutz
Olga Ruggiero
Victor Ruggiero
Address
112-20 177 St.
112-50 177 Street
112-50 177 St.
Florence A. Renaud 112-24—177th Street
Janette Hewitt 112-40 177th Street
112-40—177 Street
176-15—114th St.
112-15—176 St.
112-19 176 St. Albans
112-16 177 St.
Ross I. Hewitt
Edith L. Rowe
Alfred S. Wolf
George Strasser
Nunzio Mancuso
Irene Lutz 112-20 177 St.
22
Deed 4146 Page 395
S tate of N ew Y ork
C ounty of Qu een s
On the 29th day of February, 1939, before me
came H erman K irschbaum , to me known, who,
being by me duly sworn, did depose and say that
he resides at 88-23 162 St. Jamaica, Queens
County in N. Y.; that he is the Treasurer of Win
some Holding Corp., the corporation described
6° in, and which executed, the foregoing instrument;
that he knows the seal of said corporation; that
the seal affixed to said instrument is such cor
porate seal; that it was so affixed by order of the
Board of Directors of said corporation, and that
he signed his name thereto by like order.
C harles M ikelberg
Charles Mikelberg
Notary Public, Kings Co.
Kings Co. Clks. No. 164, Reg. No. 266
N. Y. Co. Clks. No. 516, Reg. No. 0M348
66 Queens Co. Clk’s No. 280, Reg. No. 1757
Bronx Co. Clks. No. 36, Reg. No. 138M40
Nassau Co. Clk’s No. 21M40
Cert, filed in Westchester Co.
Commission Expires March 30, 1940
Exhibit B, Annexed to Amended Complaint
23
Deed 4146 Page 396
S tate of N ew Y obk J
C ounty of Qu een s j*313- *
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came V ictor
R uggiero and Olga R uggiero to me known to be
the individuals described in, and who executed,
the foregoing instrument, and acknowledged that
they executed the same.
R egina J . S chm idt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
S tate of N ew Y ork
C ounty of Qu een s
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came J o h n H. gg
L utz and I rene L utz to me known to be the in
dividuals described in, and who executed, the
foregoing instrument, and acknowledged that they
executed the same.
R egina J . S chm idt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
Exhibit B, Annexed to Amended Complaint
24
S tate of N ew Y oke
County of Q u een s
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came J anette
H ew itt and Ross I. H ew itt to me known to be the
individuals described in, and who executed, the
foregoing instrument, and acknowledged that they
executed the same.
R egina J . S chm idt
71 Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
Exhibit B, Annexed to Amended Complaint
S tate of N ew Y ork
County of Qu een s
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came J ohn
H. L utz, the subscribing witness to the foregoing
instrument, with whom I am personally ac-
72 quainted, who, being by me duly sworn, did depose
and say that he resides at 112-20 177th Street,
St. Albans, in Queens County; that he knows
Nunzio Mancuso to be the individual described in,
and who executed, the foregoing instrument; that
he, said subscribing witness, was present and saw
Nunzio Mancuso execute the same; that he, said
witness, at the time subscribed his name as wit
ness thereto.
R egina J . S chm idt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
25
Deed 4146 Page 397
S tate of N ew Y ork )lee *
County of Q u een s j *
On the 21st day of October, one thousand nine
hundred and thirty-nine before me came F lor
ence A. R enaud to me known to be the individual
described in, and who executed, the foregoing in
strument, and acknowledged that she executed the
same.
R egina J . S chm idt
Notary Public : Queens County
Co Clk No 3671
Reg. No. 3452
Term expires 3/30/40
Exhibit B, Annexed to Amended Complaint
i o
26
Exhibit B, Annexed to Amended Complaint
Deed 4146 Page 398
6
RESTRICTIVE COVENANT
Premises: Addisleigh
The land affected by the within instrument lies
in Section 51 in Block 12632 on the Land Map of
the County of Queens
J. N.
R & R to :
Mary McKeon
Room 513
163-18 Jamaica Avenue
Jamaica, New York
78
Recorded in the Office of the Register of the
County of Queens, in Liber No. 4146 Page 394 of
Conveyances on Jan. 2, 1940 at 10:13 A. M., and
indexed under Section 51 Block 12632 on the Land
Map of the County of Queens.
B ernard M. P atten
Register
27
Answer of D efendant Sophie Rubin, to
Amended Complaint
79
SUPREME COURT
Q ueens County
-------- *--------
[SAME TITLE]
-------- +----- ---
The defendant, Sophie Rubin, by Paul R. Silver-
stein, her attorney, answering the amended com- g()
plaint, alleges:
First: Denies each and every allegation con
tained in paragraphs of the complaint numbered
“ 5” , “ 6”, “ 10”, “ 11” , “ 12”, “ 13”, “ 14”, and
“ 15”.
Second: Denies each and every allegation con
tained in paragraph numbered “ 1 ” of the com
plaint, except that the defendant admits that said
defendant and the plaintiffs, Harold F. Kemp and
Sarah M. Kemp, his wife, are two of the parties
who were signatories to the certain agreement g]_
with respect to the land known as Block #12631,
Section #51, on the Land Map of Queens County.
As AND FOB. A FIRST DEFENSE, DEFENDANT
FURTHER ALLEGES:
Third: Upon information and belief, that the
block in which the defendant resides is one of
twenty-nine blocks, more or less, which comprise
the section known as Addisleigh Park, County of
Queens, City and State of New York.
Fourth: Upon information and belief, that
covenants and restrictions similar in form to Ex-
28
Mbit A annexed to the complaint, to which this
defendant is a signatory, were prepared for all of
the land blocks in Addisleigh Park under a gen
eral plan and scheme, with the intent and purpose
that they were to be executed by a substantial
percentage of the respective owners in each of
said blocks intended to be effected thereby and
that the same were not to become effective or re
corded until executed by a substantial percentage
of the land owners as aforesaid.
83 F ifth : Upon information and belief, that it was
further intended under said general plan and
scheme that covenants similar in form to Exhibit
A annexed to the complaint affecting the remain
ing blocks in the said Addisleigh Park section
were to be recorded concurrently with the covenant
referred to as Exhibit A.
Sixth: Upon information and belief, that the
general plan and scheme failed because a sub
stantial percentage of the respective land owners
failed and/or refused to execute the covenants
gj. affecting the blocks in which they owned real prop
erty.
Seventh: Upon information and belief, that
the only covenants similar in form to Exhibit A
annexed to the complaint ever recorded were
those affecting blocks 12631 and 12632 of the Land
Map of the County of Queens.
Eighth: Upon information and belief, the
aforesaid recordation was violative of the general
plan and scheme.
Ninth: Upon information and belief, that by
reason of all the foregoing the said covenants and
Answer of Defendant Sophie Rubin
29
restrictions referred to in the complaint as Ex
hibit A and B never became of any force and
effect and are invalid and unenforceable.
As AND FOE A SECOND DEFENSE, DEFENDANT
FURTHEB ALLEGES:
Tenth: At all the times hereinafter mentioned,
the defendant was and still is the owner of prem
ises known as and by the street number 112-03
177th Street, St. Albans, New York, which prem- gg
ises have a frontage of 40 feet on 177th Street and
a depth of 100 feet on either side and lies in Block
12631, Section 51 on the Land Map of the County
of Queens.
Eleventh: On or about the 10th day of Janu
ary, 1939, the defendant herein, the plaintiffs,
Harold F. Kemp and Sarah M. Kemp, and others,
who were then residents and owners of one family
houses on lots in the section of St. Albans, Queens
County, New York, known as Addisleigh Park,
situate in Block 12631, Section 51, on Land Map
of the County of Queens, executed a certain agree- 87
merit with respect to the property owned by them,
which agreement was recorded in the Office of the
Register of the County of Queens in Liber 4146 of
conveyances, page 399 on January 2, 1940, a
photostatic copy of which agreement is annexed
to the complaint and referred to in paragraph
“ 1 ” thereof as Exhibit A, and hereby incorpo
rated by reference with the same force and effect
as though the same were set forth in full and at
length.
Twelfth: Upon information and belief, Roger
R. Grillon and Michelle Gr. Grillon, his wife, two
Answer of Defendant Sophie Rubin
30
of the signatories to the agreement referred to in
paragraph “ Eleventh” hereof, conveyed premises
known as 112-11 177th Street, St. Albans, New
York, to Anna Williams, by deed dated October
6, 1942, recorded in the Office of the Register of
Queens County, on October 8, 1942, in Liber 4263
of conveyances, page 498.
Thirteenth: Upon information and belief, that
“ John” Williams, first name “ John” being ficti-
gg tious, the true first name unknown to defendant,
is the husband of Anna Williams, the grantee men
tioned and described in the deed of conveyance re
ferred to in paragraph “ Twelfth” hereof, and
that the said “ John” Williams is a person of the
Negro race.
Fourteenth: That the said Anna Williams and
the said “ John” Williams, and their children,
ever since the 6th day of October, 1942, have
openly and notoriously continuously been in pos
session and occupation of premises 112-11 177th
Street, St. Albans, New York, to the knowledge of
go the plaintiffs herein and of the other signatories
to the agreement hereinbefore referred to as Ex
hibit A,
Fifteenth: Upon information and belief, no
action or proceeding has ever been instituted in
any Court of this State or of the United States to
enjoin the use and occupancy by the Williams fam
ily of the said premises 112-11 177th Street, St.
Albans, New York, by the plaintiffs or any of the
signatories, or their heirs, successors or assigns.
Sixteenth: By reason of all of the foregoing,
plaintiffs have waived all benefits, rights and priv-
Answer of Defendant Sophie Rubin
31
ileges under the aforesaid agreement hereinbefore
referred to as Exhibit A.
As A STD FOE A THIRD DEFENSE DEFENDANT
FURTHER ALLEGES:
Seventeenth: Defendant repeats each and
every allegation set forth in paragraphs “ Tenth”
to “ Fifteenth”, both inclusive, herein, as though
herein fully set forth.
Eighteenth: By reason of the foregoing, plain- 92
tiffs are guilty of such laches as should in equity
bar the plaintiffs from maintaining this action.
A.S AND FOE A FOURTH DEFENSE DEFENDANT
FURTHER ALLEGES :
Nineteenth: Defendant repeats each and every
allegation set forth in paragraphs “ Tenth” to
“ Fourteenth” both inclusive, herein, as though
herein fully set forth.
Twentieth: Upon information and belief, that
in addition to the premises occupied by the Wil
liams family as aforesaid, three other houses in
the same block in which the plaintiffs, Harold F.
Kemp and Sarah M, Kemp, and this defendant
reside, are owned and/or occupied by persons of
the Negro race.
Twenty first: Upon information and belief,
that such ownership and/or occupancy as alleged
in paragraph “ Twentieth” hereof occurred sub
sequent to the date of the execution of the agree
ment hereinbefore referred to as Exhibit A.
Answer of Defendant Sophie Rubin y i
32
Twenty second: Upon information and belief,
that since the execution of the agreement herein
before referred to as Exhibit A, approximately
sixty residences in the Addisleigh Park section of
St. Albans are owned, rented and/or occupied by
persons of the Negro race.
Twenty third: That the general condition now
prevailing in the Addisleigh Park section of St.
Albans and in the block in which this defendant
resides, have become so altered that the terms and
conditions of the agreement heerinbefore referred
to as Exhibit A are no longer applicable to the
existing situation.
Twenty fourth: That by reason of the prem
ises, enforcement of the agreement hereinbefore
referred to as Exhibit A would be unjust, inequit
able and oppressive and cause great hardship with
little or no benefit to the parties to said agreement
or to the general neighborhood.
A s AND FOE A FIFTH DEFENSE DEFENDANT
9G FURTHEK ALLEGES:
Twenty fifth: That the agreement referred to
in the amended complaint is void and invalid and
of no force or effect in that it constitutes an un
lawful restraint on alienation.
AS AND FOR A SIXTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty sixth: That the agreement referred to
in the complaint is void and invalid and of no force
and effect whatsoever in that its enforcement and
^ Answer of Defendant Sophie Rubin
33
the terms thereof are contrary to the provisions
and violative of the 14th Amendment to the Con
stitution of the United States of America.
As AND FOB A SEVENTH DEFENSE DEFENDANT
FURTHER ALLEGES :
Twenty seventh: That the agreement referred
to in the complaint is void and invalid and of no
force or effect whatsoever in that its enforcement
and the terms thereof are contrary to the provi- gg
sions and violative of Article I, Section 11 of the
Constitution of the State of New York.
As AND FOR AN EIGHTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty eighth: That the agreement referred
to in the complaint and the enforcement thereof
by a Court of equity or by any Court of the State
of New York would result in segregation of
Negroes and other persons not of the white or
Caucasion race solely by reason of their race or
color which is contrary to the public policy of the
State of New York and contrary to the public pol
icy of the United States of America.
As AND FOR A NINTH DEFENSE DEFENDANT
FURTHER ALLEGES:
Twenty ninth: That the agreement referred to
in the complaint is void and invalid and of no
force or effect in that the terms thereof and the
enforcement thereof by any Court of the State
of New York are violative of the treaty obligations
of the United States of America under the Charter
Answer of Defendant Sophie Rubin
34
of the United States, Articles 55c and 56, which
treaty was made under the authority of the United
States.
As AND POE A TENTH DEFENSE DEPENDANT
FURTHER ALLEGES:
Thirtieth: That the agreement referred to in
the complaint is void and invalid and of no force
or effect in that the terms thereof and the enforce-
101 ment thereof by any Court of the State of New
York are violative of the treaty obligations of the
United States of America under the Act of Cha-
pultepec of 1945, which treaty was made under the
authority of the United States.
W herefore, d e fen d an t dem ands ju d g m e n t d is
m issin g th e com p la in t, to g e th e r w ith co sts an d
d isb u rsem en ts o f th is ac tio n .
P aul R. S ilverstein ,
Attorney for Defendant,
89-31 161st St., Jamaica, N. Y.
102
(Duly verified on 7/24/46 by Sophie Rubin as
defendant.)
Answer of Defendant Sophie Rubin
35
Answer o f D efendant Samuel Richardson, to
Amended Complaint
SUPREME COURT
Qu een s County
------------------ *-------- --------
[SAME TITLE]
----- -----------------------------------------+-----------------— — - — —
Defendant, Samuel Richardson, by Ms attor
ney, Andrew D. Weinberger, for his answer, al- 104
leges:
1. Denies each and every allegation contained
in paragraph 1 of the complaint, except admits
that an exhibit annexed to the complaint purports
to show a writing to which plaintiffs Harold and
Sarah Kemp and defendant Sophie Rubin are
signatories.
2. Denies knowledge or information sufficient
to form a belief as to the allegations contained in
paragraphs 2 and 3 of the complaint.
3. Denies each and every allegation contained
in paragraph 5 of the complaint except admits
that plaintiffs Kemp, defendant Rubin and others
not parties to this action signed a writing which
is shown in Exhibit 1 and that plaintiffs Lutz and
others not parties to this action signed a writing
which is shown in ExMbit 2.
4. Denies each and every allegation contained
in paragraph 6 of the complaint except the ex
ecution of the two exhibits annexed to the com
plaint as elsewhere herein admitted.
103
5. Denies each and every allegation contained
in paragraph 10 of the complaint.
6. Denies each and every allegation contained
in paragraph 11 of the complaint except admits
that the premises referred to are improved with
private dwellings.
7. Denies each and every allegation contained
in paragraph 12 of the complaint.
8. Denies knowledge or information sufficient
to form a belief as to any of the allegations con
tained in paragraph 13 of the complaint.
9. Denies each and every allegation contained
in paragraph 14 of the complaint.
10. Denies each and every allegation contained
in paragraph 15 of the complaint.
As A FIRST SEPABATE AND COMPLETE DEFENSE
TO THIS ACTION
11. The covenant sued on herein cannot be
judicially enforced by reason of the prohibitions
contained in the 14th Amendment to the Consti
tution of the United States and the laws enacted
thereunder.
As A SECOND SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
12. The enforcement of the covenant sued on
herein is prohibited by existing treaties entered
into between the United States and other nations
and which constitute the supreme law of the land.
Answer of Defendant Samuel Richardson
37
As A THIRD SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
13. The covenant sued on herein is void and
may not be judicially enforced by reason of the
public policy of the United States and the State
of New York.
As A FOURTH SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
110
14. The covenant sued on herein cannot be
judicially enforced by reason of the prohibitions
contained in Article 1, Section 11 of the Con
stitution of the State of New York.
As A FIFTH SEPARATE AND COMPLETE DEFENSE
TO THIS ACTION
15. The covenant sued on herein is void as con
stituting an unlawful restraint on alienation of
real property.
I l l
W herefore , defendant Samuel Richardson de
mands judgment dismissing the complaint in this
action.
Answer of Defendant Samuel Richardson
A ndrew D. W einberger,
Attorney for Defendant Samuel
Richardson,
67 West 44th Street,
New York 18, N. Y.
(Duly verified on September 24, 1946 by Samuel
Richardson as defendant.)
38
112
Judgm ent
At a Special Term, Part I of the Su
preme Court of the State of New
York, held in and for the County of
Queens, at the Queens County Gen
eral Court House, 88-11 Sutphin
Boulevard, Jamaica, Borough of
Queens, City and State of New York
on the 27th day of February, 1947.
P r e s e n t :
113
H o n . J acob H . L ivingston ,
Justice.
------------------♦-----------------
[SAME TITLE]
-----------------♦----------------- -
The issues in this action having come on for
trial before Mr. Justice Jacob H. Livingston at
Special Term, Part I of this Court on the 6th, 7th
and 13th days of November, 1946 and this action
having been fully tried upon the issues presented
by the amended complaint and the amended an-
swer of defendant Sophie Rubin and the answer
of defendant Samuel Richardson, and the plain
tiffs having appeared herein by "Wait, Wilson &
Newton, Esqs., their attorneys, Frederick W. New
ton, Esq. and William F. Cambell, Jr., Esq. of
counsel and the defendants having appeared as
follows: Sophie Rubin, by Paul Silverstein, Esq.
her attorney and Irving L. Schuh, of counsel,
Samuel Richardson by Andrew D. Weinberger,
Esq. his attorney and Vertner W. Tandy, Jr.,
Esq. of counsel and the following as amici curiae:
Will Maslow and Leo Pfeffer, Esq., on behalf of
39
the American-Jewish Congress and the American
Civil Liberties Union; Marion Wynn Perry, Esq.,
on behalf of the National Lawyers Guild; Witt &
Cammer, Esqs., by Mortimer B. Wolf, Esq. of
counsel, on behalf of New York State Industrial
Union Council and the Greater New York In
dustrial Union Council, C. I. 0., Charles Abrams,
Esq., attorney on behalf of City-wide Citizens
Committee of Harlem ; William Kincaid Newman,
Esq., attorney on behalf of Social Action Com
mittee of the New York City Congregational 116
Church Association, Inc.; Robert L. Carter, Esq.,
attorney on behalf of Methodist Federation for
Social Service, and after hearing the proofs and
allegations of the plaintiffs and the defendants,
and due deliberation having been had thereon and
the Court having rendered its decision made and
filed on the 11th day of February, 1947.
Now on motion of Wait, Wilson & Newton, at
torneys for the plaintiffs Harold F. Kemp, Sarah
M. Kemp, John H. Lutz and Irene Lutz, it is
Ordered, adjudged and decreed that the de- j j -
fendant Sophie Rubin be and she hereby is per
manently restrained and enjoined until December
31, 1975 from permitting the use or occupancy
by, or selling, conveying, leasing, renting or giv
ing to Samuel Richardson, a negro, or to any
person or persons of the Negro race, blood or
descent the premises 112-03 177th Street, St. Al
bans, New York, and it is further
Ordered, adjudged and decreed that the defend
ant Samuel Richardson be and he hereby is per
manently restrained and enjoined until December
Judgment
40
31, 1975 from using or occupying or buying, leas
ing, renting, or taking a conveyance or gift from
the defendant Sophie Rubin or others of the
premises 112-03 177th Street, St, Albans, New
York, and it is further
Obdebed, adjudged and decbeed that the under
taking, on injunction pendente lite, as provided
by order of this Court dated July 9, 1946, given
on behalf of the plaintiff by The National Surety
119 Corporation, dated July 2, 1946 and approved by
this Court on the 9th day of July, 1946 in the
sum of Three thousand five hundred ($3,500.00)
Dollars is hereby cancelled and annulled and The
National Surety Corporation thereon is hereby
discharged from all liability upon such under
taking and it is further
Obdebed, adjudged and decbeed that the Clerk
of this Court is directed to enter judgment ac
cordingly.
Enter,
120
J acob H. L ivingston ,
J. 8. C.
Granted: February 28, 1947
P aul L ivoti,
Clerk.
Judgment entered March 1st, 1947 at 9 :10 A. M.
(Seal) P aul L ivoti,
Clerk.
° J udgment
41
Case and Exceptions
SUPREME COURT
Qu een s C ounty
S pecial T erm— P art I
-— ------------- + -------------------------------------------
[SAME TITLE]
------------------ +------------------
Jamaica, N. Y., November 6, 1946, 122
B e f o r e :
H on . J acob H . L ivingston,
Justice
121
Appearances:
Wait, Wilson & Newton, Esqs.,
Attorneys for the plaintiffs,
By Frederick W. Newton, Esq. and
William F. Campbell, Jr., Esq.
Paul Silverstein, Esq., and
Irving L. Schuh, Esq.,
For tbe Defendant Rubin.
Andrew D. Weinberger, Esq., and
Vertner W. Tandy, Jr.,
For tbe Defendant Richardson.
American Jewish Congress and the American
Civil Liberties Union as amici curiae,
by Leo Pfeffer, Esq.
National Lawyers Guild as amicus curiae,
by Marion Wynn Perry, Esq.
42
New York State Industrial Union Council and
the Greater New York Industrial Union Coun
cil, C. I. 0. as amici curiae,
by Witt & Cammer, Esqs., by Mortimer B.
Wolf, Esq., of counsel.
City Wide Citizens Committee On Harlem as
amicus curiae,
by Charles Abrams, Esq.
125 Social Action Committee of the New York City
Congregational Church Association, as amicus
curiae,
by William Kincaid Newman, Esq.
Methodist Federation for Social Service as
amicus curiae,
by Robert L. Carter, Esq.
(Briefs were submitted to the Court and ex
changed among counsel.)
Harold F. Kemp—For Plaintiffs—Direct
126 H arold F. K e m p , residing at 112-59—-177th
Street, St. Albans, Long Island, New York, called
as a witness on behalf of the plaintiffs, being first
duly sworn, testified as follows:
Direct examination by Mr. Newton:
Q. Mr. Kemp, you are the owner of the prop
erty, 112-59—117th Street, are you? A. With my
wife.
Q. You and your wife——
Mr. Weinberger: If your Honor please, I
suggest that we may be able to save some of
43
the Court’s time by stipulating as to a few
of the pro forma facts.
Mr. Newton: I am not going to take more
than five minutes.
Mr. Weinberger: There are a number of
things that counsel may not be able to prove,
that we are ready to stipulate. We want to
get down to the fundamentals of law here.
Mr. Newton: All right, go ahead.
Mr. Weinberger: I offer to stipulate, on
the assumption that all of these items are 128
stipulated to pro and con, that the plaintiffs
Kemp own 112-59—177th Street, St. Albans;
that the plaintiffs Lutz own 112-20—177th
Street; that the covenants annexed to the
complaint were signed as indicated and re
corded ; that the plaintiffs are not negroes nor
of the negro race, blood, or descent; that the
defendant Richardson is a negro and a citizen
of the United States and of New York State;
and that the defendant Richardson owns the
vacant lot of land 40 by 100 feet abutting on
the rear of 112-03—177th Street, which is the [29
property in suit here.
Mr. Newton: I will accept those conces
sions. That will save time. Thank you.
Are those concessions also made by the
defendant Rubin!
Mr. Silver stein: Yes, they are so made.
By Mr. Newton:
Q. Now, Mr. Kemp, how long have you oc
cupied those premises? A. About 22 years.
Q. As a private home? A. As a private home.
Q. Your property there, as I understand it, is
Harold F. Kemp—For Plaintiffs—Direct 1-11
44
about 60 by 120 feet, is that right? A. No, 100 by
120.
Mr. Weinberger: That is objected to. I
move to strike out the answer. The question
contains the word “ about” . The complaint
alleges that your property is 60 by 100 feet.
Counsel here does not ask the question, but
testifies that it is 100 by 120.
The Court: No; he said 60 by 120, and the
witness corrected him to 100 by 120.
131 The Witness: That’s right.
By Mr. Newton:
Q. Mr. Kemp, those lots on that street are
actually 60 feet wide, is that right? A. That is
correct.
Q. By 100 feet deep? A. Correct.
Q. Your property includes two lots, is that
right? A. That’s right.
Q. I show you a photograph and ask you if
that is a photograph of your home at that loca
tion. A. Yes, sir.
132 Mr. Newton: I offer the photograph in evi
dence, if the Court please.
Mr. Weinberger: No objection.
(Received in evidence and marked Plain
tiffs’ Exhibit 1.)
Q. Now, adjoining your property to the north
there is a vacant lot, is that right? A. Yes, sir.
The Court: May I ask a question? Would
the north be to the right of the picture, Plain
tiffs ’ Exhibit 1, or to the left?
Harold F. Kemp—For Plaintiffs—Direct
45
The Witness: To the left as you are look
ing at it.
Q. Then there is a house, I believe, that is
owned by a person by the name of Hemachandra?
A. Yes, sir, I believe so.
Q. I ask you if these are photographs of the
two houses to the north of you on your side of the
street. A. Yes, sir.
Q. I show you additional photographs and ask
you if those are the remaining houses on your side 134
of that street within that block between 112th
Avenue and 114th Avenue. A. I believe they are.
Mr. Newton: I offer them in evidence.
Mr. Weinberger : There is no objection,
your Honor, except to the photograph of 112-
15—177th Street, which is marked Budelman,
indicating that it is one house owned by
Budelman, when the fact is, I believe, that it
is a photograph of two houses taken at such
an angle that a tree obscures the division line
between the two. If that is noted on the rec
ord I have no objection. 135
The Court: Would it be very important to
the case?
Mr. Weinberger: No, I don’t think it will
be, but I do think that the plaintiffs are not
making an attempt to capitalize it.
Mr. Newton: I certainly consent that coun
sel’s statement be noted on the record, and
that it is correct.
(Received in evidence and marked Plain
tiffs’ Exhibits 2-A, 2-B, 2-C, and 2-D.)
Harold F. Kemp—For Plaintiffs—Direct
46
Harold F. Kemp—For Plaintiffs—Direct
By Mr. Newton:
Q. Those houses, so far as you know, Mr. Kemp,
are all occupied as single-family homes, is that
right? A. As far as I know, yes.
Mr. Newton: If the Court please, I offer
in evidence a part of the tax map of the City
of New York. It is not for proof of any
boundary lines; it is merely to show the loca
tion of the premises that we are considering
137 and for no other purpose.
(Received in evidence and marked Plain
tiffs’ Exhibit 3.)
Mr. Newton: I offer in evidence agreement
for restrictive covenant dated January 10,
1939. That is the agreement referred to in
the stipulation of counsel. It is signed by the
plaintiffs Harold F. Kemp, Sarah M. Kemp,
and by the defendant Sophie Rubin, so I will
not have to prove the signatures.
(Received in evidence and marked Plain-
138 tiffs’ Exhibit 4.)
Mr. Newton: May it appear in the record
that the restrictive covenant, Exhibit 4, was
recorded in the Queens County Register’s
Office on January 2, 1940?
Mr. Weinberger: That is right.
By Mr. Newton:
Q. Mr. Kemp, at the time that you signed this
restrictive covenant, Exhibit 4, was anything said
about the other side of the street in that same
block that you live on?
47
Mr. Weinberger: That is objected to.
Mr. Silverstein: The same objection.
A. I haven’t seen that covenant as yet.
The Court: Just a minute. When there
is an objection, do not answer.
Objection sustained. Strike out any an
swer.
Q. Was there at that time, within your knowl
edge, circulated and signed a restrictive covenant 44Q
affecting the other side of that street and in that
same block that you live in?
Mr. Weinberger: That is objected to. If
such a document were signed, let it be pro
duced and offered.
The Court: Objection sustained. What is
the basis of your complaint? Plaintiffs’ Ex
hibit 4, or Exhibit 4 and another restrictive
covenant?
Mr. Newton: Both.
The Court: You allege in your complaint
another restrictive covenant. 141
Mr. Newton: I want to show—I will be
perfectly frank-----
The Court: No; let us limit ourselves.
(Discussion off the record between the
Court and counsel.)
The Court: Now, I said that in your com
plaint you seek injunctive relief because of
the statements contained in this covenant,
Plaintiffs’ Exhibit 4, and another one?
Mr. Newton: That is right.
The Court: Put the other one in evidence.
Harold F. Kemp—For Plaintiffs—Direct
48
Mr. Newton: I will do that. I offer in evi
dence, if the Court please, a restrictive cove
nant bearing the same date, January 10,
1939, affecting the other side of 177th Street,
in the same block between 112th Avenue and
114th Avenue, recorded in the Queens County
Register’s Office on the same date, January
2, 1940.
Mr. Silverstein: I object to the introduc
tion of that on the ground that a reading of
143 the instrument will indicate that there is no
privity whatsoever between either the defend
ant Rubin or any other parties whose names
are signatories to that agreement; that the
parties who are the signatories to the agree
ment now offered reside in another block;
that there is no reference whatsoever in the
agreement now in evidence as Plaintiffs’ Ex
hibit 4 to the agreement now offered, or vice
versa; and that that agreement is not binding
upon this plaintiff.
Mr. Newton: In equity in an action to en-
144 force one of these covenants where there are
two or more affected properties as part of a
common scheme or plan, the decisions uni
formly hold that they may all be shown, that
they may be proved together, and that the
relief may be granted without regard to priv
ity of estate or of contract.
If your Honor wishes to look at the cases,
they are on page 4 of my brief—Equitable
Life Insurance vs. Bregin, 148 N. Y. 661;
Saratoga State Waters Corporation vs.
Brach, 227 N. Y. 429.
The Court: Without going into that for
Harold F. Kemp—For Plaintiffs—Direct
49
the moment,—I am addressing myself to Mr.
Silverstein, who made the objection,—is it
one of your contentions that the change in
conditions makes this restrictive covenant in
operative ?
Mr. Silverstein: That is one of the de
fenses.
The 'Court: Well, don’t you think that if it
is one of your defenses we ought to have the
picture of the entire neighborhood?
Mr. Silverstein: That is what I want. I 146
don’t want the two blocks between the-----
The Court: He is offering two blocks in
order to get a picture of the entire neighbor
hood. I don’t think that anybody would stop
you from offering a couple of more blocks,
and he would be establishing a precedent
which might enure to your benefit.
Mr. Silverstein: There is just one other
thought I want to point out. I claim by my
answer that that which seems to have valid
inception, these two instruments never had
any valid inception, because there was sup- im
posed to be a common scheme and plan which
failed in its entirety.
The Court : Wouldn’t we get a better pic
ture of the situation if we had all covenants
in?
Mr. Silverstein: All covenants in, yes.
The Court: I think you ought to withdraw
your objection at this time and only urge the
striking out of this if there is substantial ob
jection made when you want to introduce one
and the ruling is against you.
Mr. Silverstein: May I reserve my right,
then?
Harold F. Kemp—For Plaintiffs—Direct
50
The Court: Yes.
Mr. Newton: I want to say at this time on
that subject, so that the Court may not mis
understand me, that I maintain that this
scheme which affected both sides of the street
is a unit, and that I have a right to show both
sides of the street, and that I have pleaded
both sides of the street. When it comes to
going up beyond that I say now to the Court
that I intend to object to it.
149 The Court: I won’t tell you how I will rule
then. The objection is withdrawn at this time
and counsel reserves the right to make such
objection later, and I give him that right.
(Received in evidence and marked Plain
tiffs’ Exhibit 5.)
By Mr. Newton:
Q. Mr. Kemp, did you know at the time that you
signed this restrictive covenant, Plaintiffs’ Ex
hibit 4, that there was being circulated and signed
on the other side of the street an identical cove-
150 nant affecting the houses on that side of the street?
Mr. Weinberger : That is objected to as
calling for the operation of this witness’s
mind, either now or in 1939, and it is not
evidence.
The Court: I will let him answer it.
A. Yes, sir, I did.
Mr. Weinberger: Exception.
The Court: I want all of you to feel free
to take exceptions whenever you feel you need
them, without feeling that you are in anywise
bothering the Court. You are not.
Harold F. Kemp—For Plaintiffs—Direct
51
Q. How long have you owned and occupied that
house? Did I ask that question? A. You asked
that.
Mr. Newton: I ask for the production,
please, of the contract of sale made by the
defendant Sophie Rubin, to one Samuel Rich
ardson, of premises 112-03 177th Street.
Mr. Weinberger: A motion was made be
fore this Court, before we were in the case,
asking for the production and examination of
that contract. The motion was denied. The 152
pleadings admit that the defendant Richard
son signed a contract of purchase from the
defendant Rubin, and that pursuant to that
contract this real property has been sold by
Rubin to Richardson.
Mr. Newton: That is admitted now in the
record, is it?
Mr. Weinberger: It is admitted in the
pleadings.
The Court: Whether it is or not, do you
make that admission now?
Mr. Weinberger: Yes, sir. ^
The Court: So that we save looking up the
paper at this moment. All right, that is all
you want, is it?
Mr. Newton: That is all I want. You may
examine.
The Court: This Richardson contract, or
the property covered by the proposed con
tract, is that on the same side of the street as
Kemp’s house, or on the other side of the
street ?
Mr. Weinberger: The same side as Mr.
Kemp’s house.
Harold F. Kemp—For Plaintiffs—Direct
The Court: In other words, Richardson’s
proposed grantor is a signatory-----
Mr. Newton: To Exhibit 4, yes.
The Court: To the restricted covenant, is
that right?
Mr. Weinberger: Yes, sir, that is right.
Mr. Newton: You may examine.
Cross examination by Mr. Weinberger:
Q. What is the assessed valuation of your
house, Mr. Kemp? A. I don’t know what it is.
Q. What did you pay in taxes on the house last
year? A. I can’t answer accurately, because I pay
so much a month. I believe it was around $250.
Q. Do you recall when I made a motion in this
court last August on behalf of the National Asso
ciation for the Advancement of Colored People,
pleading to come in amicus curiae? A. Do I recall
that? I was not here.
Q. Did counsel tell you that such a motion had
been filed with this court and served on him as
your attorney? A. About what?
Q. Did your attorney tell you that such a motion
had been filed? A. What kind of a motion?
Q. A motion for the National Association for
the Advancement of Colored People to intervene
in this action as a friend of the; court. A. No, sir.
Q. Did you know that such a motion was pend
ing? A. No, sir.
Q. It was widely reported in the newspapers,
but you didn’t see it there or hear of it from your
attorney, is that correct? A. I didn’t know it.
Q. Did you know that in the interval between
the time that those motion papers were served and
the return before this court on August 28th, in
Harold F. Kemp—For Plaintiffs—Cross
53
your street in St. Albans and in the adjoining’
streets notices had been put under the doors of
ten or twenty of the negro occupants and owners
of those houses warning them to get out of their
homes, and signed KKK?
Mr. Newton: I object, if the Court please.
The Court: Sustained. What has that to
do with this case?
Mr. Weinberger: I want to know what this
defendant had to do with it.
The Witness: I had nothing to do with it. ^ ^
The Court: Wait a minute; don’t answer
it. I don’t see any connection. As I under
stand it, I am trying the case here in Special
Term to determine whether the plaintiff is
entitled to injunctive relief against Sophie
Eubin and Samuel Eichardson. Is that right?
Mr. Weinberger: Yes, sir.
The Court: It is a legal proposition, as I
see it. They either are or they are not en
titled to it. I am sure you will concede that
I do not approve of any practices such as
those you have just mentioned, and I don’t 159
think any decent person does, but it has noth
ing to do with this case, and we must not con
fuse the issues.
Mr. Weinberger: Except that this case,
your Honor, is a more polite and more formal
version of just that sort of conduct.
The Court: No. I don’t think that this
Court would allow itself or lend itself to being
used as a branch or adjunct of the Klu Klux
Klan.
Mr. Weinberger: I don’t think this Court
will.
Harold F. Kemp—For Plaintiffs—Cross 10
54
The Court: No, this Court won’t, nor
would any Judge of this court, I am sure.
Now, let us get down to the case.
Mr. Weinberger: That is all.
Cross examination by Mr. Silver stein-.
Q. Mr. Kemp, how long have you owned your
home? A. About 22 years.
Q. What did you pay for it? A. About $21,000.
Q. Now, there is' a party by the name of Hema-
161 chandra living next door to you? A. Hemachan-
dra.
Q. The family is colored, is it not? A. I believe
so.
Q. Do you know what your assessed valuation
of the property was in 1939? A. No, sir.
Q. Do you know how much you paid in taxes in
1939, real estate taxes? A. No, sir.
Q. How much are your real estate taxes today?
A. I said I thought they were about $250 a year.
I am not positive of it.
Q. Are you a member of the Addisleigh A. P. 0.
162 Holding Corporation Association? A. Yes.
Q. How long have you been active in that or
ganization? A. I think it is around seven or eight
years.
Q. There is an area in St. Albans known as
Addisleigh, is that correct? A. Yes, sir.
Q. And that area of Addisleigh covers property
running along Linden Boulevard, on both sides of
it, up to the railroad, the Long Island Railroad,
near what is now the Naval Hospital, is that cor
rect? A. That is commonly what it is regarded as.
Q. Then it runs north along the railroad to
what would be known as 112th Avenue ? A. Addis-
1 D U Harold F. Kemp—For Plaintiffs—Cross
55
leigh was not generally regarded to go down to
as far as 112th Avenue.
Q. Then, you tell me the area that is embraced
in Addisleigh, the Addisleigh section of St. Al
bans. A. Well, there is no way I can tell you
exactly how far north the Addisleigh section of
St. Albans was supposed to be.
The Court: What is your general impres
sion of the Addisleigh section?
The Witness: My general impression from
living there a number of years—there was a ^ 4
woods there, there was a closed street, and
that street is now opened up and there is no
street running that way now that would close
—between 114th Avenue, or Murdoch Avenue
now, and 112th Avenue. The Addisleigh sec
tion as it was regarded before, that ran from
114th Avenue to this woods which is now
opened up.
The Court: That was your impression?
The Witness: Yes, sir.
By Mr. Silver stein: 165
Q. And your house is north of 114th Avenue, is
that correct? A. That is correct.
Q. Then, the property south of 112th Avenue is
in the Addisleigh section of St. Albans, is that
right? A. Not all of it, what I would consider the
Addisleigh section of St. Albans.
Q. Is Mr. Rubin’s house in the Addisleigh sec
tion of St. Albans? A. I would regard it in the
Addisleigh section.
Q. Is he not located on the corner of 112th Ave
nue and 177th Street? A. I don’t think he is.
Q. You don’t think so? A. No, sir.
Harold F. Kemp—For Plaintiffs—Cross
56
Q. You have lived on that street how many
years? A. Twenty-two.
Q. How long have yon known Mr. Rubin? A.
I haven’t known him at all.
Q. Do you know his house? A. Yes, sir.
The Court: Do we get a concession as to
the location of Mr. Rubin’s house?
Mr. Newton: Yes, your Honor. If I un
derstand the question,—and I don’t think the
witness did—as I understand it, it is the
southeast corner of 112th Avenue and 177th
Street.
The Court: Is that what you contend?
Mr. Silverstein: Yes, sir.
The Court: Do you concede it?
Mr. Newton: Yes, your Honor.
The Court: Your lawyer, Mr. Witness,
says that it is on that corner.
By Mr. Silverstein:
Q. Now, 112th Avenue going in a northeasterly
168 direction towards Long Island Railroad, would
you call that the boundary line of the Addisleigh
section? A. Would you repeat that again?
Q. (Last question read.) A. Yes, I would, now
that I know where 112th Avenue is, that the Rubin
house is on.
Q. Then, running along the railroad to Linden
Boulevard----- A. Yes, sir.
Q. Then, as we run in a westerly direction
along Linden Boulevard and towards Merrick
Road, would that be within the area? A. Yes, sir.
Q. Both the north and the south sides of Linden
Boulevard? A. I would say it would. I couldn’t
tell you exactly.
Harold F. Kemp—For Plaintiffs—Cross
57
Q. What is the most westerly street that is
within the boundary line of the Addisleigh sec
tion? A. You mean towards Merrick Road? Is
this westerly?
Q. Yes, going toward the Merrick Road. A. I
couldn’t give you exactly my definition of where
Addisleigh ends in the westerly direction. As a
rough guess, I would say it is about 174th Street.
Q. Isn’t it a fact that 173rd Place is part of
the section known as Addisleigh? A. I don’t know.
Q. You wouldn’t know that? A. I don’t know 170
the exact location of 173rd Place.
Q. Some time prior to January 10, 1939, the
residents of the Addisleigh Park area, including
yourself, got together, did they not? A. We had
meetings.
Q. You formed an association, did you not? A.
Yes, sir.
Q. What was that association known as? A. I
believe it was the Addisleigh Holding Corpora
tion, some name that was just repeated a few min
utes ago. I don’t remember the exact name.
Q. Didn’t you form an association prior to
January, 1939, a property owners association? A.
I don’t remember whether there was any asso
ciation formed prior to this Addisleigh Holding
Corporation.
Q. Did you have any meetings? A. There were
meetings before January, 1939, but I don’t re
member whether-----
Q. Where did those meetings take place? A.
I don’t remember.
Q. Did you attend them? A. Maybe one.
Q. About how many people were at these meet
ings? A. The one that I attended, I would say
that might have been forty or fifty people.
Harold F. Kemp—For Plaintiffs—Cross 1 0 y
Q. How many houses are there on your block?
A. The block between what?
Q. The street you live on. A. From Linden
Avenue to what you call 112th?
Q. Do you live between Linden Avenue and
112th? A. No, but I live on 177th Street. That
is on the block that I live on.
Q. Between 112th and 114th, is that correct? A.
Well, yes, I live—that is what I want specified,
what the limitations were.
Q. I asked you, Mr. Witness, the block you
lived on. A. I didn’t know if you meant in be
tween those two, 112th and 114th. I want to an
swer accurately. That is why I am asking this.
Q. You don’t live on more than one block, do
you? A. I don’t see how it is physically possible
to.
The Court: Let us not quibble.
Mr. Silverstein: May I have the question
answered?
Q. How many houses are there on your block?
A. On both sides of the street?
Q. On one side, your side of the street. A. Why,
there are eight or nine.
Q. How many are there on the other side of
the street? A. Around seven or eight.
Q. And the meeting you attended had forty or
fifty people there, is that correct? A. The meet
ing I attended was a meeting of more than just
the one block.
Q. It included several blocks, did it not? A.
Yes, sir, I believe so.
Q. Have you an idea of how many blocks there
are in the Addisleigh area? A. How many blocks
are in the Addisleigh area?
Harold F. Kemp—For Plaintiffs—Cross
59
Q. Yes. A. I would say it is from 174th Street
to around 180th.
Q. If I were to tell you that there were about
29 blocks in the Addisleigh area, would that be
substantially correct? A. I would say it would be
too high.
Q. Despite the fact that it falls within the area
that you have given to me? A. Well, my area, I
said, was what I regarded, was 174th to around
180th Street.
The Court: How many blocks do you say
is your conception of Addisleigh?
The Witness: I ’d say around nine or ten
blocks, which would be running along west
erly—east to west direction.
Q. Did you become a member of the Addisleigh
Park Properties Association? A. Did I what?
Q. Become a member of the Addisleigh Park
Property Owners Association? A. Yes, sir.
Q. Do you remember when you became a mem
ber? A. Not the exact date, no, sir.
Q. Was it prior to the execution of the cove- 177
nant which I believe is Plaintiffs’ Exhibit 4? A.
I believe it was, but I am not positive.
Q. As a matter of fact, that Association was
formed by people who lived in the Addisleigh
Park section of St. Albans, is that correct? It
is not confined to the two blocks in which you and
Mr. Lutz live? A. No, sir.
Q. But it takes into consideration the people
who live in the entire Addisleigh Park area? A.
Yes, sir.
Q. And at these meetings there was discussion,
was there not, about a covenant that was to be
Harold F. Kemp—For Plaintiffs—Cross
60
executed by the property owners, which wTould be
in effect a covenant under a general scheme and
plan covering the entire area, is that correct ? A.
Yes, sir, such a covenant was discussed.
Q. And that covenant was to be sent out to the
property owners in the various blocks throughout
the entire Addisleigh area, is that correct? A.
Yes, sir.
Q. And the covenant known as Plaintiffs’ Ex
hibit 4, the one that you signed and the one that
179 Mr. Rubin signed, was the first covenant pre
pared which was submitted to the property own
ers in Addisleigh Park, is that correct? A. I
don’t know whether it was the first or not.
Q. But you do know that that was submitted to
the property owners in Addisleigh Park? A. I
know it was submitted to me; I don’t know any
thing about the other covenants on the other
streets, when they were submitted.
Q. At these meetings of the Association wasn’t
there some covenant discussed? A. I was only at
one meeting, so I know very little about-----
23q Q. At this meeting you attended----- A. —the
matter of covenants.
Q. (Continuing) —wasn’t the discussion gen
eral? It was not confined to your block, was it?
A. No, sir.
Q. There were people there from other blocks,
were there not? A. Yes, sir.
Q. The people that were at these meetings or
at the meeting that you attended were persons
who lived in the area, and there was taken under
consideration by these people, including yourself,
a type of covenant that was to be signed and filed
-u ° Harold F. Kemp—For Plaintiffs—Cross
61
affecting the entire area, is that correct? A. Yes,
sir, a covenant was discussed.
Q. For the entire area? A. Yes, I said that
covenants for the entire area were discussed,
Q. And there was no discussion, was there, at
the meeting you attended, that for the block you
were to be in there would be one type of covenant
and for the block that Mr. Jones was in, using a
fictitious name, there was to be another type of
covenant? A. No, sir.
Q. The general idea then was uniformity of 182
covenant, if any covenant came into existence ?
Mr. Newton: I object to that, if the Court
please.
The Court: Yes, I think that is presuppos
ing something of which we have no proof.
I would like to ask a question.
One of you brought out before that there
was a colored neighbor of this man?
Mr. Silverstein: Yes.
By the Court:
1 Q O
Q. Is that the house right next to you? A. °
With one lot in between, 60 feet.
Q. When did that colored neighbor move in
there, Hemachandra? When did they come in?
What I want to know is, was it before this cov
enant or subsequent to the covenant? A. I don’t
know whether it was before. I would say it was
a matter of around six or seven years. There
must be a date there that they know when he came
in.
Q. I am asking you if you know? A. I don’t
know if it is before or after the covenant.
Q. They are there six or seven years and you
Harold F. Kemp—For Plaintiffs—Cross
don’t know whether it is before or after the cov
enant? A. I don’t know whether it is before or
after the covenant.
The Court: Let the record show that the
covenant we refer to is Plaintiffs’ Exhibit
4.
Mr. Silver stein: We can supply that in
formation.
The Court: If counsel can agree, I would
like to have that information.
Mr. Silverstein: I am taking the informa
tion from one of your affidavits.
Mr. Newton: And I explain to the Court
that that particular property was not affected
by the covenant, inasmuch as it was owned by
an institution at the time the conveyance was
made.
Mr. Weinberger: I must take exception to
the statement by Mr. Newton that it was not
affected by the covenant because it was owned
by an institution. There are decent people
in Queens County who will convey prop
erty—
The Court: You. are suffering from a hang
over. Yesterday was Election Day. Today
we start with a clean slate, and all these
speeches are forgotten until next September
or October. I am not a jury. Before a jury
you use that type of argument, appealing to
emotion. I am going to try to divorce my
self as much as humanly possible from all
emotion in this case. You are correct in your
objection that there is no proof.
What I want to know is this: When did
the Hemachandra family come into posses-
Harold F. Kemp—For Plaintiffs—Cross
63
sion ? I think that is an important factor in
this case. If I can be told, I want to be told.
If I cannot be told, I will withdraw the ques
tion.
Mr. Silverstein: I can supply the informa
tion from an affidavit made by John Lutz. I
believe he is in court. He is one of the plain
tiffs. At the time of the signing of the
covenant the premises were owned by the
Manufacturers Trust Company as trustee.
Subsequent to the execution of the covenant 188
Manufacturers sold the property, which it
held by mesne conveyances, and this is long
after the execution of the covenant. It was
purchased by the Hemachandras, who are
now in possession. They are the fee owners.
They purchased it subsequent to the execution
of the covenant.
The Court: Before this case is finished,
will somebody furnish the date of their deed?
(Discussion between Court and counsel off
the record.)
189The Court: Counsel said that he will fur
nish the Court with the information as to
when the Hemachandra family came into pos
session of the property adjacent to Mr.
Kemp’s property, “ adjacent” meaning with
one lot between. I would like also for the
record to show who owned that property at
the time of the signing of the covenant, Plain
tiffs ’ exhibit 4, and whether or not that owner
was a signatory to the covenant. These are
all facts that we do not have to argue about.
Mr. Newton: If your Honor please, as
Harold F. Kemp—For Plaintiffs—Cross
64
was stated in the affidavit, the property was
at that time owned by the Manufacturers
Trust Company as trustee, and that company
did not sign the covenant.
By Mr. Silver stein-.
Q. Do you know a party by the name of Michelle
G. Grillon? A. Who?
Q. Grillon? A. I don’t recognize the name.
Q. If I were to tell you that Michelle G. Grillon
191 is a signatory to Plaintiffs’ Exhibit 4, in evidence,
would you accept that as the fact? A. If you said
that he was on the covenant?
Q. Yes. A. Yes, surely.
Q. Have any colored families moved in on your
block since the time you signed Plaintiffs’ Exhibit
4? A. Not to my knowledge.
Q. Well, the Hemachandras moved in, didn’t
they? A. I am excluding them.
Q. As a matter of fact, Grillon, one of the
parties to the covenant, sold his house to a colored
man, didn’t he ? A. I don’t know that.
192 Q. Mr. Williams is married to Anna Williams,
do you know that?
Mr. Newton: I object, if the Court please.
Mr. Silverstein: I am asking him if he
knows.
A. I don’t know who you are referring to—Mr.
Williams.
Q. Are you familiar with premises 112-11—
177th Street? A. I know approximately where
it is. I am not familiar with any details connected
with who owns it or anything like that.
Q. You haven’t the faintest idea? A. No, sir,
I haven’t the faintest idea.
Harold F. Kemp—For Plaintiffs—Cross
65
Q. And you don’t know who occpuies it? A.
No, sir.
Q. How long have you known Mr. Lutz? A.
Approximately ten or twelve years.
Q. Are you very friendly with him? A. I
wouldn’t say very friendly. We know each other
as neighbors and see each other once in awhile.
Q. He is your co-plaintiff in the action, is he
not? A. Yes, sir.
Q. Was he active in the affairs of the Addis-
leigh Property Owners Association? A. I don’t 194
know how active he was, whether he was active
or not.
Q. You have no idea? A. No, sir. I would say
the one meeting that I was at, that he was not
active in it.
Q. Who brought the covenant to you, Plaintiffs’
Exhibit 4? A. I believe it was a man by the name
of Maring, I think.
Q. Ho you remember when he brought it to you?
A. No, I don’t remember the exact date.
Q. Was anybody with him when it was brought
to you? A. I don’t remember that. igg
Mr. Silverstein: That is all.
John H. Luts—For Plaintiffs—Direct -* -y °
J o h n H. L utz, residing at 112-20—177th Street,
St. Albans, Long Island, New York, called as wit
ness on behalf of the plaintiffs, being first duly
sworn, testified as follows:
Direct examination by Mr. Newton:
Q. Mr. Lutz, you live about in the middle of the
block between 112th Avenue and 114th Avenue
and on the side opposite to Mr. Kemp, is that
right ? A. Right.
Q. I show you some photographs and ask you
if these are photographs of the houses on your
side of the street in that block! A. Yes, they
are.
Mr. Newton: I offer them in evidence, if
the Court please.
Mr. Silverstein: No objection.
(Received in evidence and marked Plain
tiffs’ Exhibits 6-A, 6-B, and 6-C.)
Q. I show you another photograph and ask
you if that is correctly labeled a photograph of
177th Street looking north from 114th Avenue.
That would be toward 112th Avenue. A. Yes,
that is.
Mr. Newton: I offer that in evidence.
(Received in evidence and marked Plain
tiffs’ Exhibit 7.)
Q. Mr. Lutz, I show you a sketch on which cer
tain lots are shaded in red. Have you compared
that with the covenants, Exhibits 4 and 5, so that
you are able to state that those lots shaded in red
are the ones that were covered by the covenants?
A. That’s right.
Mr. Newton: I offer that in evidence, if
the Court please, not as proof of any fact,
but as a chart to aid in understanding the
covenants.
Mr. Silverstein: Except that one portion
of it Mr. Kemp did not own, I think, 60 feet
John 11. Lutz—For Plaintiffs—Direct
67
of it, at the time that the covenant was exe
cuted.
Mr. Newton: He does now.
Mr. Silverstein: He does now own it, but
he did not own it at the time the covenant
was executed.
Mr. Newton: I withdraw the last offer.
Counsel has called my attention-----
Mr. Silverstein: If you change it and con
sent to it---- -
Mr. Newton: I will consent that there is a 200
question about the ownership of one of those
lots at that time. There was a deed which we
believe was given as a mortgage and the next
year was conveyed back to this man. It hap
pened that that deed was of record at that
particular moment.
The Court: Did he own 60 feet and his
house at the time of the covenant?
Mr. Silverstein: No, he didn’t. He owned
the house, if that is the 60 feet you are re
ferring to.
The Court: I am talking about the 60 201
feet.
Mr. Silverstein: That he owned?
The Court: I mean the 60 feet on which the
house was that he owned.
Mr. Silverstein: Yes.
The Court: What difference would it be if
he owned the other 60 feet?
Mr. Silverstein: He didn’t own it.
The Court: Let us assume he didn’t own
it; what difference would it make?
Mr. Silverstein: No difference at all.
The Court: I mean, his rights are not in-
John- H. Luts—For Plaintiffs—Direct
68
creased or decreased by the size of bis lot.
Mr. Silverstein: By tbe size of tbe prop
erty be owns, that’s right.
Tbe Court: Suppose we take it with tbe
understanding that be only owns 60 feet and
bis bouse, tbe lot on which tbe bouse stands,
and that later it may be called to tbe Court’s
attention as to whether or not be owns tbe
rest, and that unless there is an agreement,
it only stands as to these 60 feet.
203 Mr. Silverstein: Your Honor does not
quite understand it. He unquestionably owns
tbe whole 120 feet now. Tbe question is
whether at tbe time of tbe signing be owned
it.
Tbe Court: At tbe time of tbe signing,
surely. I understood it.
(Received in evidence and marked Plain
tiffs’ Exhibit 8.)
By Mr. Newton:
OQjL Q- ^-r ' Lutz, bow long have you owned and
occupied that property, 112-20—177th Street? A.
I think it will be about nine years this December,
approximately. Of course, tbe date I couldn’t
say exactly.
Q. At tbe time when these covenants, Exhibits
4 and 5, were signed, were you active in any as
sociation or organization of property owners in
that section of tbe city? A. No, sir.
Q. Did you know that at that time there was a
covenant similar to tbe one that you signed that
was being circulated and signed on tbe other side
of tbe street? A. At that time?
John H. Luts—For Plaintiffs—Direct
69
Q. Yes. A. You mean that, was there another
covenant, you mean?
Q. No; this same covenant. A. Yes, both sides,
right.
Q. In your block? A. That’s right, yes.
Mr. Newton: You may examine.
Cross examination by Mr. Silver stein:
Q. Mr. Lutz, is there an Addisleigh section of
St. Albans? A. That’s right, there is. 206
Q. Will you tell us what your impression is of
the area, the boundary lines of the Addisleigh
Park section of St. Albans?
Mr. Newton: If the Court please, as I
understand it, there is some confusion be
tween the names Addisleigh section and Ad
disleigh Park section. I wish counsel would
explain which he means, so that the record
will not be confused when we get through.
By the Court:
Q. Do you know of two sections, Addisleigh ^07
Park and Addisleigh? A. I know Addisleigh.
Q. You don’t know of any Addisleigh Park?
A. Well, I heard of it.
Q. But all your section is—— A. Is called
Addisleigh section.
The Court: Is that what you are talking
about ?
Mr. Silverstein: Yes.
Q. What do you consider to be the Addisleigh
section? A. Well, approximately I am giving
you-----
John H. Luts—For Plaintiff—Cross
70
Q. All these things are approximately. A.
Around 173rd-----
The Court: Counsel, you do not contend
that there is a definite section known as Ad-
disleigh Park with definite boundaries?
Mr. Silverstein: No; I am talking about
the section.
The Court: What his general conception
is?
Mr. Silverstein: Yes.
209 The Court: When somebody says, for in
stance, that he lives in the Williamsburg sec
tion of Brooklyn, nobody can bound it.
Mr. Silverstein: No, but these people did
bound it.
The Court: They did?
Mr. Silverstein: Yes.
Q. If you bounded it before, tell us what your
conception of the boundaries is. A. About 173rd
to about 180th. Now, taking Linden Boulevard,
of course, whether it is—I don’t mean the hos-
210 pital site; I mean the opposite side of Linden
Boulevard—it runs from that point of Linden
Boulevard over approximately, as I say, 112th
Avenue. As Mr. Kemp specified before, it was
woods through there, and that was the dividing
line.
By Mr. Silverstein:
Q. So that the Addisleigh section is 173rd
Street running along 112th Avenue to the Long
Island Railroad in St. Albans? A. That’s right.
Q. And running south along the railroad down
to Linden Boulevard? A. That is about right.
John H. Luts—For Plaintiff—Cross
71
Q. And then running along Linden Boulevard
back towards 173rd Street, is that correct? A.
That is about right.
Q. That is your understanding and impression
of the Addisleigh section? A. Unless I have the
actual map that is drawn on there, that is what
I would call Addisleigh, right.
Q. How long have you lived on 177th Street!
A. Oh, since December, approximately nine years.
Q. How long have you known Mr. Kemp? A.
Since I have lived there. In fact, I knew him long 212
before that in line of business.
Q. How long have you known Mr. Rubin? A.
Since I lived in that territory.
Q. Do you know a Mr. Mass in the area? A. I
do.
Q. Since you lived there? A. Since I live there,
yes.
Q. And Mr. Houser? A. Right.
Q. Mr. Greene? A. Right.
Q. Mr. Mancuso? A. That’s right. They are
neighbors.
Q. Mr. Kilpatrick? A. Another neighbor. 213
Q. Mr. Johnson? A. Johnson, yes.
Q. And Mr. Richardson? A. Right.
Q. Mr. Mehling? A. Right.
Q. All the people I have just mentioned, with
the exception of Rubin, live on your side of the
street, is that correct? Do you know a Mr. Litz-
ner? A. That is the opposite side.
Q. Yes. A. That is not the original owner of
that property.
Q. Do you know Mr. Grillon? A. I know of
him, yes. I know Mr. Grillon, yes.
Q. Who is the present occupant of the house
John 11. Luts—For Plaintiffs—Cross
72
that formerly was occupied by Grillon? A. A
party by the name of Williams.
Q. Mr. Grillon signed the covenant, didn’t he?
A. That’s right.
Q. I am referring now to the covenant in the
block in which Mr. Kemp and Mr. Kubin live. A.
Right.
Q. Are there colored people living there now?
A. The party that bought that property was a
white woman by the name of Williams.
215 Q. Mrs. Williams? A. Mrs. Williams, a widow,
supposed to have been when that was .sold.
The Court: Who lives there now?
The Witness: Name of Williams. Her
name was Williams.
The Court: Does she live there now?
The Witness: She lives there now.
Q. She is married to a colored man? A. I
wouldn’t say so, no, sir.
Q. Is there a colored man living in the house?
A. I don’t know. I see colored working around
216 there.
Q. Did you ever see a colored man go in and
out of the house? A. Yes, I have seen him going
in and out.
Q. The same man? A. Yes, many a time.
Q. Are there colored children living in that
house? A. Why, there is a little colored girl, very
light-complected, going in and out. I seen her,
yes.
Q. In the house. Did you know that Grillon
sold that house after he signed the covenant? A.
Yes.
Q. Do you know how long the Williams family
John H. Lilts—For Plaintiffs—Cross
73
has been living in the house formerly occupied by
Grill on? A. I couldn’t give you the exact date,
but approximately maybe about four years.
Q. Since 1942? A. Well, it might be that. I
don’t know the date or the year.
Q. Have you seen the same colored man going
in and out of that house? A. No, I don’t. I have
no interest in that particular route by watching
people like that, my friend. I have seen them
there a number of times, but I haven’t seen them
going in and out the way you specify. 218
Q. Have you ever been active in any association
embracing the area in which you live ?
Mr. Newton: I ask that the time be fixed,
your Honor.
Mr. Silverstein: Let him first tell us if he
has ever been. Then no time may be fixed.
A. Ask the question again, please?
Q. (Last question read.) A. No, not up until
the present time. Of course, within the last year.
Q. Well, are you now connected with any asso
ciation? A. In that area?
Q. Yes. A. Yes, I am. 219
Q. What is the name of that association? A.
The association?
Q. Yes. A. Addisleigh Property Owners Asso
ciation.
Q. Are you an officer of that association? A. I
am.
Q. What office do you occupy? A. President.
Q. How long have you been president? A. Since
about last October.
Q. Prior to that time were you a member of the
Association? A. Yes, I was.
Q. Did it hold any meetings? A. Yes, it did.
John H. Luts—For Plaintiffs—Cross
74
Q. How long has that association been in exist
ence ! A. Ever since I am in the neighborhood.
Q. So that that association has been in exist
ence, as far as you are concerned, for at least nine
years! A. Well, wait a minute. I may be exag
gerating one year. I would say eight years.
Q. Eight to nine years! A. Eight to nine years.
Q. You were a member then! A. Yes, that’s
right.
Q. Did it hold regular meetings! A. No,—well
221 once a year or so, like that. Of course, when they
have-----
Q. Prior to January 10, 1939, did you attend
the meetings of this Association! A. Prior to
that!
Q. Yes. A. No, I don’t remember; only one,
probably.
Q. Where was that meeting held! A. That
meeting, I believe, was held in the—where the St.
Albans Hospital is now’, in the clubhouse. There
used to be a golf links there. They used to call
the meetings there, and the only one I remember
999 attending on that particular—of the organization
at that time.
Q. About how many people attended that meet
ing! A. Well, I would say around fifty, forty-five
to fifty.
Q. And the people that attended that meeting,
would you say that they came only from the block
in which you and Mr. Kemp lived, or would you
say that they came from several of the blocks in
what is known as Addisleigh! A. Several of the
blocks of that particular area.
Q. At the meetings you attended prior to the
John II. Luts—For Plaintiffs—Cross
7 5
execution of the covenants, was there a general
discussion among the participants at the meeting
concerning restrictive covenants against people
of the negro race? A. No, not at that time.
Q. Well, when did any discussion come up, if
there was any, about execution of covenants con
cerning people of the negro race? A. Why, the
covenant, after it was made, of course, it had that
clause in, and, of course, everybody signed it. Of
course, when it was, I couldn’t exactly give you
the date on that. 224
Q. Mr. Witness, this agreement which has your
signature, in evidence as Plaintiffs’ Exhibit 5,—
look at it. A. That’s right, that’s my signature.
Q. There was a meeting of the Property Owners
Association, was there not, prior to the time you
put your name on that paper? A. Yes, we have
had a meeting, yes, that’s right. We did, of
course. As far as the dates are concerned— —
Q. Was there one meeting or more than one
meeting? A. You mind my asking? Don’t push
me too hard, will you, please, just a little easy,
and I will answer every question you might put to
me. What was that question you wanted to know?
By the Court:
Q. He asked you, before you signed these cove
nants did you have a meeting? A. Yes, we did.
Q. Was there more than one meeting or one
meeting? A. Well, I will tell you, at the time—
of course, this is 1939 it went into effect. I am
only in there nine years.
Q. I mean to your knowledge. You can only
speak for yourself. A. Well, maybe one or two
meetings before that.
John H. Luts—For Plaintiffs—Cross
76
226 John II. Lutz—For Plaintiffs—Cross
By Mr. Silver stein-.
Q. Do you know who prepared that paper? A.
No, I do not.
Q. Did you meet any lawyers during the course
of these meetings? A. No, I didn’t meet any
lawyer.
Q. At any of these meetings were there many
of these papers that were prepared? A. No, I
don’t remember anything like that.
Q. You don’t? A. No, sir.
Q. But papers similar in form to the one now
before you were presented to the meeting for
their consideration, were they not? A. I didn’t at
tend those meetings. I knew nothing about them,
only this particular one.
Q. At that meeting were papers in form similar
to the one before you presented for your consid
eration? A. Before this?
Q. Before you signed that paper. A. No, sir.
Q. When for the first time did you see a paper
similar in form to the one you now have before
you? A. Before this one here?
Q. Yes. A. I don’t remember.
By the Court:
Q. Let us see if you understand the question. A.
Maybe I don’t understand it.
Q. At the time you signed and several other peo
ple signed this at the meeting----- A. That’s right.
Q. You had a meeting or two, you say, before
that? A. Yes. It wasn’t signed at the meeting,
pardon me; these were signed at individual homes.
Q. All right. At the meeting which you had
and one or two, you said, before, this was dis
cussed? A. That’s right.
77
Q. Was this paper or a similar paper or a paper
with this agreement passed around, or was it dis
cussed? A. That was just discussed.
Q. Discussed? A. That is all.
Q. But there wasn’t a paper passed? A. No,
sir, not at the time.
Q. What was in this covenant was discussed at
the meeting? A. That’s right. They just prob
ably discussed it. Of course, I was only to one
meeting.
Q. At that meeting that you were at; that is 230
what you are telling us about? A. Yes.
Q. They talked about this covenant? A. That
is it.
By Mr. Silver stein-.
Q. When they spoke about it, they spoke about
it in terms of the Addisleigh section of St. Al
bans, did they not? A. That’s right.
Q. That it was to be a covenant to be submitted
to the residents of Addisleigh? A. That’s right.
Q. That it was to be a covenant under a general
plan and scheme to cover all of Addisleigh? A. 231
Well, I don’t know, I don’t remember that.
Q. You don’t remember that? A. No. I tell
you, all I was interested in, in this particular
covenant. Now, this particular covenant cov
ered our area. What happened outside of the
area, it might have been discussed, but I don’t
remember anything shown to me outside of this
one particular one.
Q. As a matter of fact, at that meeting which
you attended wasn’t there discussion among prop
erty owners in the area of Addisleigh about a
covenant which was to be entered into between
John II. Luts—For Plaintiffs—Cross
78
232 John H. Luts—For Plaintiffs—Cross
233
the property owners of Addisleigh under a gen
eral plan or scheme for the entire area of Addis
leigh? A. That’s right, general discussion.
Q. Is that correct? A. That’s right.
Q. And the thought was at that meeting that
the covenant that should be executed and filed
would be a covenant which would cover all the
blocks in the Addisleigh section of St. Albans?
Mr. Newton: I object to that, if the Court
please.
The Court: He has already answered that.
He has said he doesn’t know. He said all he
knew was his block, his area.
Q. Are you an officer of the Addisleigh Prop
erty Owners Association? A. I am.
Q. What office do you hold? A. President.
Q. How long have you been president? A.
Since last October.
The Court: Didn’t we go through that
once?
The Witness: Yes, we went through it.
Q. Now, there is an A. P. 0. Holding Corpora
tion in Addisleigh Park, is there not? A. That
is the A. P. 0. I just mentioned, yes, that’s right.
Q. You are president of that? A. That’s right.
Q. Is there a difference between the Associa
tion and the Corporation, or are they one and the
same? A. The Addisleigh Park-----
Mr. Newton: I object to that, if the Court
please. I don’t think that the corporation en
ters into this picture in any way. I can’t
see that it does.
Mr. Silverstein: If it isn’t material___
79
The Court: Let me see if it is the same.
What is the A. P. 0 .?
The Witness: A. P. 0. is a corporation,
and there is a civil organization also.
The Court: What is the Addisleigh Park
Organization?
The Witness: The Addisleigh Park Prop
erty Owners Association, Inc. That is a
holding corporation, that is what that is.
That has nothing to do with this particular
case. This is on the civic proposition. 236
Q. Mr. Lutz, do you know of your own knowl
edge how many blocks there are approximately in
Addisleigh? A. When you say blocks, what do
you mean? When you say a block, do you mean a
block like between——
Q. Bounded by four streets.
The Court: Square blocks.
The Witness: Square blocks? What
would you consider that?
The Court: A square block is one.
The Witness: One? Well, square blocks, 237
I wouldn’t consider Addisleigh with any more
than about 15 square blocks.
Q. Within that area? A. It may run a little
more than that, but, of course, I never figured that
out approximately, but that’s right.
The Court: That is your best estimate?
The Witness: About around 15 square
blocks I would say.
Q. Since the time you signed the covenant,
Plaintiffs’ Exhibit 5, do you know of your own
knowledge how many colored families have moved
John II. Luts—-For Plaintiffs—Cross
80
into your block on your side of the street? A.
You mean taking in just on my side?
The Court: The block between two-----
The Witness: That is a square block?
Mr. Silverstein: The square block that he
lives in.
The Witness: He means 176th Street he
is taking in now?
The Court: Wait a minute. The sketch
that I saw, Plaintiffs ’ Exhibit 8, only showed
one side of a block, not a square block.
Mr. Silverstein: That is right.
The Court: Now, you have just said a
square block.
Mr. Silverstein: A square block. That is
what I want to know from him.
The Court: You are asking for territory
not covered in the restrictive covenant to
which he is a party?
Mr. Silverstein: Oh, no; I am asking for
territory that was supposedly covered within
the restricted covenant to which he is a
210 party, a square block.
Mr. Newton: I will say, your Honor, that
there were some signers on 176th Street and
178th Street, and each of these covenants was
originally intended to cover a square block.
The Court: That straightens it out. You
want to know the square block?
Mr. Silverstein: Yes.
The Court: See if I state your question
correctly: Since the covenant was signed, the
covenant to which he is a party-----
Mr. Silverstein: That is right.
The Court: How many colored families
John H. Luts—For Plaintiffs—Cross
81
have moved into the square block on which
your house is located? Is that your question,
Counselor?
Mr. Newton: I am going to object to that,
your Honor, on the ground that it is imma
terial, since under the law there is no re
quirement that an owner who is a signatory
to one of these covenants take any particular
notice of any particular violation. He may
waive a violation, he may overlook a viola
tion, but when a violation occurs which affects 242
him personally, he may bring action. I want
it understood that I mean that that goes to
the question of waiver only. On the other
question, of change of character, I don’t make
that objection.
The Court: I am taking this only on the
question of change of character.
Mr. Newton: On that it is all right.
The Court: I take it on that basis.
(To the witness): You may answer.
The Witness: Well, that is in the back of
me, 177th. There is nothing on that par- 243
ticular side of the street of 177th, but around
the other side, around the block, 176th, ap
proximately, I should say, they are right di
rectly in back of me, we have colored.
The Court: About how many families
have moved in since the restrictive covenant?
The Witness: Oh, I would say maybe four
families over there, approximately, I think.
By Mr. Silver stein-.
Q. Four have come into the block? A. I don’t
know. Of course, I am guessing at that, but I
John II. Luts—For Plaintiffs—Cross 4 4 1
know directly in back there are two families on
the 176th Street side.
Q. They have come in since? A. That have
been in there, that’s right.
By the Court:
Q. He said, “ That have come in since.” Yon
say, ‘ ‘ That have been in there. ’ ’ To me they mean
different things. A. No, no.
Q. He is asking you for those who have come
in since the restrictive covenant was signed. A.
That’s right.
Q. Is that what you meant, too? A. That’s
right, but, pardon me, your Honor, the covenants
were signed by those people—I don’t believe they
come into this covenant.
Q. You leave the legal part to the lawyers and
to me. A. All right.
Mr. Newton: May I ask a question just
to be sure I am straight on this?
The Court: Yes.
By Mr. Newton: ,
Q. That is on the east side of 176th Street be
tween 112th Avenue and 114th Avenue? Is that
the place you are talking about? A. That’s right.
By Mr. Silverstein:
Q. Now, when these covenants of which you
signed one, Plaintiffs’ Exhibit 5, were distributed
to the various property owners for signature,
some of the people who did not live in your block
signed your covenant, did they not? A. You
mean prior to the people who are in there now?
John 11. Lutz—For Plaintiffs—Cross
83
Q. Yes—no, no, I am talking about those who
are signatories to the covenant. A. Yes.
Q. They did not necessarily live in yonr block
when they signed it? A. No, no. That’s right.
Q. They might have lived in another block? A.
Eight in that square block at 177th Street and
176th that I put-----
Q. They might have lived outside of the square
block? A. I don’t know. I am not interested in
that; I am only interested in what I see.
By the Court:
Q. Whether you are interested or not, counsel
wants to know whether any signed your covenant
who did not live on your block? A. Oh, I couldn’t
answer that.
Q. You can’t answer? A. Oh, I don’t know
that.
John II. Lutz—For Plaintiffs—Cross 247
248
By Mr. Silver stein-.
Q. Tell me, who went around with the instru
ment to the various property owners?
The Court: Do you know what he means
by an instrument?
The Witness: No.
249
Q. The paper, the covenant, do you know who
took the paper around? A. I know one, the man
across the street came. Beck was one, that he
went around with the covenant. He got maybe
two or three signatures. He got mine.
Q. Did he go to any block other than your
block, that you know of? A. No, I don’t believe
he did.
84
Q. You don’t? A. There were several of them,
I believe, in our particular block that went around.
Q. Were there several people who were active
in the Association who were going to the various
folks in Addisleigh? A. They acted as captains,
as I understand it.
Q. To the various property owners in the vari
ous blocks? A. That’s right. They covered so
much of the area.
Q. This covenant to which you are a signatory
251 and the one to which Mr. Kemp and Mr. Lutz are
signatories are similar in form to covenants that
were distributed throughout Addisleigh for signa
ture by the property owners owning property lo
cated in the Addisleigh section of St. Albans, is
that right ?
Mr. Newton: I object to that as imma
terial.
The Court: No, I will take it.
Mr. Newton: Exception, please.
By the Court:
252 Q. Did they hand out similar restrictive cove
nants in other parts of Addisleigh Park for signa
ture? A. Outside of this one here?
Q. Yes. A. I don’t know that.
By Mr. Silverstein:
Q. Wasn’t it part of a general scheme and
plan when this covenant was first prepared, that
it was to be submitted to the property owners in
Addisleigh? Wasn’t it all part of a general
scheme and plan to have uniformity in the type
of covenant that was to affect the Addisleigh Park
^ ’ J U John II. Luts—For Plaintiffs—Cross
85
area? Was it or was it not! A. When you say a
scheme, I don’t know what you mean.
Q. Wasn’t it a general plan that if any cove
nant was to be applied, that covenant was to be
similar in form not only with respect to the block
on which you live and on which Mr. Kemp and Mr.
Eubin live----- A. That’s right. It took in the
whole area.
Q. It was to take in the whole area? A. I be
lieve so. All I was interested in, though, was
what the covenant came to me. What the other 254
covenants were-----
Q. You were not interested it? A. I wasn’t in
terested.
Q. Let me call your attention to an affidavit
made by you under date of May 28, 1946, page 3,
page 2 of the affidavit, the original of which is
on file in this court, in which you said, beginning
with the second sentence of the first paragraph:
“ At the time of the execution of the restrictive
covenant it was part of a general plan in the
neighborhood to place restrictions on the prop
erties of the various land-owners.” You made 255
that statement? A. Was that in the statement?
I didn’t make that statement, but that was the
general rule of the association at the time, I be
lieve, but I never made the statement.
Mr. Silverstein: Will you concede, Mr.
Campbell, that you were the Notary who took
the affidavit?
Mr. Campbell: Yes, sir.
Mr. Silverstein: Will you concede that Mr.
Lutz signed the original? The papers are
not here.
John H. Lutz—For Plaintiffs—Cross
86
256 John H. Luts—For Plaintiffs—Cross
The Court: It is conceded that he said that
in the affidavit. He just said that that was
the general plan. He objected to the word
“ scheme” , but he said a general plan, and
he said, too, that he was not interested in it.
By Mr. Silverstein:
Q. If I were to tell you, Mr. Witness, that there
are approximately 29 blocks in Addisleigh, would
you accept my statement as being substantially
correct! A. If there are that many, yes.
Q. If I were to tell you, Mr. Witness, that there
are only two blocks in all of Addisleigh against
which there are recorded restrictive covenants,
so-called,—the one recorded with respect to your
block and the one recorded with respect to the
block in which Kemp and Rubin live—would you
accept that statement as a fact?
Mr. Newton: I object, if the Court please,
as immaterial.
The Court: Sustained. I think that you
r»-g could get a concession from counsel on that.
Mr. Silverstein: I will tell you what I
have prepared, your Honor,-----
The Court: You are asking him what that
means. Maybe out of politeness he says that,
but he doesn’t know.
By Mr. Silverstein:
Q. Do you know of your own knowledge how
many blocks are affected by covenants similar in
form to Plaintiffs’ Exhibits 4 and 5? A. No, I
couldn’t tell you.
87
John H. Lutz-—For Plaintiffs-—Cross
By the Court:
Q. Do yon know of any other blocks that are
restricted in the manner that your block and
Kemp’s block are? A. I understand there is a
temporary covenant. They have on there a
temporary restrictive covenant, yes.
Q. On other blocks ? A. On other blocks.
Q. A temporary restrictive covenant? A. I
don’t know what it is.
The Court: Could he be referring to a 260
temporary injunction?
Mr. Newton: I will explain it, if I may,
and counsel will correct me if I am wrong.
These two covenants, Exhibits 4 and 5, are
the only ones that we have any knowledge
of in this precise form. There was another
form of covenant circulated in other blocks
which had in it a defeasance clause, which is
what this witness refers to.
The Court: Were they recorded?
Mr. Newton: I don’t know whether they
were or not. 20p
Mr. Silver stein: That is all of this witness.
(An adjournment was taken to Thursday,
November 7, 1946.)
Jamaica, N. Y., November 7, 1946.
T rial C ontinued
Mr. Newton: The plaintiffs rest, your
Honor.
Mr. Weinberger: The defendant Kie,hard-
son rests, your Honor.
8 8
Defendant Richardson’s Motion to Dismiss
Complaint
Tlie defendant Richardson moves to dis
miss the complaint on the ground that the
plaintiffs have failed to make out a cause of
action.
Before proceeding to the argument, your
Honor, I would like to make four motions on
behalf of amicae curiae who have requested
me to make these motions. Miss Marion
Wynn Perry, attorney for the National Law-
263 yers Guild, who attended in court yesterday
but is not feeling well this morning, has
asked me to read this motion to your Honor:
“ The National Lawyers Guild is a Bar As
sociation devoted to the principle that laws
and the agencies which administer them must
be responsive to the will of the people and
must be devoted to the defense and strength
ening of our democratic institutions. We re
gard it as the true function of law, in a con
stitutional form of government, to guide so
ciety toward higher forms of co-existence
264 rather than to follow the less worthy attitudes
of a community.
“ It is for this reason that we are deeply
concerned that the courts of the State of New
York not be used as an instrument for the en
forcing of residential segregation, an act
which would be forbidden to the legislative
bodies of the State or City of New York.
“ For the reasons stated above, the National
Lawyers Guild hereby requests permission of
this Court to appear as amicus curiae and to
adopt the position taken and briefs filed on
this motion on behalf of the defendant Sam
uel Richardson.
89
“ Subscribed, Marion Wynn Perry, Attor
ney for National Lawyers Guild.”
Tbe Court: Let tbe record show that yes
terday before we adjourned tbe Court bad
a conference at tbe bench with tbe attorneys
representing tbe plaintiffs, tbe defendant
Rubin, and tbe defendant Richardson; that
the question of admission of the amici
curiae was discussed—and if I do not state
tbe agreement correctly you may all correct
me—that it was agreed that there was no ob-
jection to tbe admission of these requesting
parties to appear as amicus curiae on tbe
condition that they were not to ask questions
of tbe witnesses, make motions, or in any
way act as trial lawyers in tbe case, but were
to be limited to sitting in at the trial, which
courtesy they have already received without
asking for it, and that they be further lim
ited to the filing of briefs.
Mr. Newton, does that correctly state the
position?
Mr. Newton: That is correct, your Honor. 267
The Court: Mr. Silverstein, does that cor
rectly state the position?
Mr. Silverstein: Yes.
The Court: Mr. Weinberger?
Mr. Weinberger: Yes, except that I am
not certain that your Honor disposed of this
question. I don’t think it was raised. I be
lieve that Mr. Pfeffer, representing the Amer-
ican-Jewish Congress, intends to ask for leave
to argue but not otherwise to participate in
the trial, only to argue on this motion.
Mr. Pfeffer: On behalf of the American-
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90
Jewish Congress—and the American Civil
Liberties Union has also requested me to act
in its behalf—I would like to address the
Court on the motion for a few moments, and
I ask leave to file my brief. It is not in form
to present to the Court yet, but it will be
before the end of the trial.
The Court: I am not limiting you to the
final form of the brief. I will give you a
reasonable time to file a brief. As far as the
269 question of addressing the Court is concerned,
I have no objection if the other attorneys have
no objection.
Mr. Weinberger: I won’t object, no.
(Discussion between the Court and counsel
at the bench.)
The Court: Let the record show that after
another conference with the three attorneys
who appear for the parties in the ease, and
with their consent, the Court will grant the
request of Mr. Pfeffer, in addition to his filing
0 a brief and sitting in on the case, also to ad
dress the Court on the motion to dismiss.
Mr. Pfeffer: On the motion to dismiss.
The Court: I am granting that on one con
dition, and I am going to enforce that very
strictly, that there be no personalities re
ferred to, no people referred to, in this argu
ment, that you address yourself solely to the
questions of law involved and to any princi
ples of law that you think belong in this case;
but you cannot call anybody any names. I
would not permit that before to lawyers in
the case. Do you understand that?
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91
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Mr. Pfeffer: Yes, your Honor. I would
like to thank the Court and the attorneys, es
pecially the attorney for the plaintiff. I
assure you that my discussion will be purely
one of law, which will be the broader aspects
of law. It will not be an attack on personal
ities nor will it be a speech.
The Court: Now, I don’t think we have a
formal application from you. Mr. Pfeffer,
you apply for permission to sit in as amicus
curiae on behalf of the-----
Mr. Pfeffer: The American-Jewish Con
gress and the American Civil Liberties Union.
The Court: Under the conditions afore
mentioned and with the consents aforemen
tioned, that permission is granted to the ex
tent aforementioned.
Mr. Weinberger: Is there a ruling on the
record with reference to the application of
the National Lawyers Guild?
The Court: Well, I grant them the same
permission. Their lawyer, who I understand
was here yesterday but is ill today, may sit
in for the balance of the trial, may file a brief,
and may be heard by the Court in the same
manner as Mr. Pfeffer will be heard, with the
same restrictions and under the same condi
tions. That is what you want, isn’t it?
Mr. Weinberger: That is fine, thank you,
but I don’t believe Miss Perry wants to be
heard.
The Court: Now, come back to your mo
tion to dismiss.
Mr. Weinberger: I have three other appli
cations, none of which applicants wishes to
be heard.
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The Court: Put your applications on the
record.
Mr. Weinberger: The City-wide Citizens
Committee of Harlem., a non-profit organiza
tion dedicated to the improvement and better
ment of housing conditions among negroes in
New York City, respectfully states to this
Court that after having inquired into the
facts of this action and examining the brief
of the defendant Samuel Richardson, it
hereby moves this Court for permission to
appear as amicus curiae and adopt the con
tents of the aforesaid brief as fully as if sub
mitted by the Committee. It is signed by
Charles Abrams, Attorney for the City-wide
Citizens Committee.
The Court: The motion is granted with
the same limitations as imposed on the other
amicus curiae.
Mr. Weinberger: ‘ ‘ The Social Action Com
mittee of the New York City Congregational
Church Association, Inc., is deeply concerned
over the failure to apply the Christian prin
ciples of brotherhood in our daily life, and
particularly with our failure to live peace
fully and with dignity with our negro broth
ers and sisters.
“ The Social Action Committee is in accord
with the statement adopted on behalf of the
Congregational Christian Denomination at
the Biennial Meeting by the General Council
of the Congregational Christian Churches in
June, 1946, as follows:
‘We repent of the sin of racial segrega
tion as practiced both within and outside
93
our churches, and respond to the mandate
of the Christian Gospel to promote with
uncompromising word and purpose the in
tegration in our ’Christian churches and our
democratic society of all persons of what
ever race, color, or ancestry on the basis
of equality and mutual respect in an inclu
sive fellowship.
‘We affirm as our own these words
adopted by the Federal Council of Churches
of Christ in America (meeting at Columbus, 278
Ohio, March 5-7, 1946):
‘ ‘ ‘ The Federal Council of Churches of
Christ in America hereby renounces the
pattern of segregation in race relations as
unnecessary and undesirable and a viola
tion of the Gospel of love and human broth
erhood.” ’ ”
“ For the reasons stated above, the Social
Action Committee of the New York City
Congregational Church Association, Inc.,
hereby requests permission of this Court
to appear as amicus curiae and to adopt 279
the position taken and the brief filed on this
motion on behalf of the defendant Samuel
Richardson.
(Signed) William Kincaid Newman,
Attorney for Social Action Commit
tee of the New York City Congre
gational Church Association, Inc.”
The Court: Without in anywise passing
on the merits or the implications or the state
ments contained in these applications, I am
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94
granting the application to appear as amicus
curiae under the same limitations and under
the same conditions as hereinbefore set forth
when the Court was addressing itself to Mr.
Pfeifer.
Mr. Weinberger: “ The Methodist Federa
tion for Social Service is a membership or
ganization which seeks to establish and ex
tend full ethnic democracy and which seeks
complete realization of the religious and dem-
281 ocratic promise of equal opportunity. In
that connection the Methodist Federation for
Social Service seeks the abolition of all racial
discrimination and segregation, including re
strictive housing covenants. The organiza
tion is an unofficial organization which speaks
only for its membership, but it has the moral
blessing and backing of the General Confer
ence of the Methodist church.
“ For the reasons stated above, the Metho
dist Federation for Social Service hereby re
quests permission of this Court to appear as
282 amicus curiae and to adopt the position taken
and the brief filed on this motion on behalf of
the defendant Samuel Richardson.
(Signed) Robert L. Carter,
Attorney for Methodist Federation
for Social Service.”
The Court: Let it appear that this attor
ney is also permitted to appear as amicus
curiae on the same conditions and with the
same limitations as hereinbefore set forth and
applied to all others who have sought such
permission and to whom it has been granted.
^ o u Colloquy
95
In other words, let us make it clear that this
Court is hearing the trial of a case. These
statements that have been read may meet with
the Court’s approval and may not, but it is
not necessary for me to pass on them. I per
mit to be heard all these attorneys who want
to be heard, and I permit them to sit in at the
trial. I shall give them every courtesy pos
sible, but I do not admit these statements in
evidence, because they are not part of the
case. Isn’t that so, Mr. Weinberger? 284
Mr: Weinberger: They are not evidence,
no, sir; they are argument of counsel.
We make three points, your Honor——
The Court: You are coming back to your
motion to dismiss. The clerk tells me that
there is one counsel for two associations who
also wants to be admitted. As long as we
are granting permission at this time, we will
also grant the permission to Witt & Cammer,
by Mortimer Wolf. They are admitted under
the same terms and conditions and with the
same limitations as applied to the others. ^g~
Mr. Weinberger: There are three points,
your Honor: The first is that the judicial
enforcement of this covenant is in violation of
the 14th Amendment to the United States
Constitution. We do not contend that the
covenant is void under the 14th Amendment,
but that any action by this or any other State
court would be in violation of the equal pro
tection granted by the 14th Amendment. That
Amendment, your Honor, is a restriction
against the states only. Consequently, the
restriction may be 'against the State even
though it is not against these plaintiffs.
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96
There were three attempts, three pieces of
legislation before the United States Supreme
Court which attempted to secure by legisla
tion pretty much the same result that these
plaintiffs attempt to secure by decree of this
court. The first is the case of Buchanan v.
Warley, where the court considered a statute
of the State of Kentucky which required the
consent of the majority of residents in a com
munity, be the majority white or negro, be-
287 fore any member of the opposite race could
move within that community. The Supreme
Court held that this was in direct violation
of the 14th Amendment and of Title 8, Sec
tion 42, of the United States Code, which is
an enabling act passed pursuant to that
amendment and which reads:
“ All citizens of the United States shall
have the same right in every state and ter
ritory, as is enjoyed by white citizens
thereof, to inherit, purchase, lease, sell,
hold and convey real and personal prop-
288 erty.”
Construing the amendment and Section 42
of Title 8, in the case of Buchanan v. Warley,
the Supreme Court said:
“ We think this attempt to prevent aliena
tion of the property in question to a person
of color was not a legitimate exercise of the
police power of the State, and is in direct
violation of the fundamental law enacted
in the Fourteenth Amendment of the Con
stitution preventing State interference with
property rights except by due process of
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97
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law. That being the ease, the ordinance
cannot stand.”
Bnchanan v. Warley was followed by Har
mon v. Tyler, a similar situation, emanating
from a different State. The court again held
the statute was unconstitutional and that no
State Legislature or City Council, as was
decided in the third case, City of Richmond
v. Deans, could by legislative enactment cre
ate racial segregation.
We are now in court with these plaintiffs
asking your Honor to issue a decree which in
effect legally, completely, and effectually
would accomplish what the Legislature of the
State of New York is prohibited from doing
by the Fourteenth Amendment. This requires
us to sit back and inquire, would a decree
issued out of this court be action by the State
of New York, the decree that is asked for, to
call upon all the machinery of this court with
its power and clerks of the court and baliffs
and sheriffs and writs of assistance, to en
force the decree. 291
There are innumerable cases holding that
action by any State department, action by
the judiciary, action by even an administra
tive officer of the State, is action by the State.
This has been held both with reference to
substantive law and procedural law. The
Supreme Court had the matter before it in
Ex Parte Virginia, in 100 U. S., 339, and I
dare say that that case is cited in almost
every term of the Supreme Court and is con
sidered the leading case on what is State
action.
98
A Federal statute required that there be
no discrimination against negroes in the se
lection of juries. A Judge in a State Court
in Virginia excluded negroes from service on
the jury. He was indicted. The Supreme
Court held that he was an officer of the State
and that this was a violation of the Four
teenth Amendment and sustained the indict
ment.
In the procedural field the Supreme Court
293 had the matter before it in Powell v. Alabama,
287 U. S., where a conviction-was reversed as
being in violation of the Fourteenth Amend
ment, because it was held that the Judge did
not adequately safeguard the rights of the
accused.
The cases are legion that action of the
judiciary is action of the State. There is a
fair sample of it in the brief. I do not think
your Honor would want me to go further with
the question.
The Court: If you have covered it in the
294. brief you may rest assured that I shall read
it and every brief very carefully and, of
course, all the cases cited in the various briefs.
Mr. Weinberger: This conclusion was
reached in the District Court for the District
of California as early as 1892 in Gfandolfo v.
Hartman. The covenant before the court was
one which prohibited renting to Chinese. The
court there said:
“ Any result inhibited by the Constitu
tion can no more be accomplished by con
tracts of individual citizens than by
^ Colloquy
99
legisation. and the court should no more
enforce the one than the other.”
Only last year the Los Angeles Superior
Court had the question before it again.
The Court: Let me understand it. I don’t
know if I have gotten the correct implication
of what you say. Do you say that that de
cision held that an agreement among indi
vidual property owners not to rent to Chinese
was held illegal?
Mr. Weinberger: Yes, sir. zyD
The Court: Was this a State law that you
were talking about?
Mr. Weinberger: No. It was held that
such an agreement, whereas the agreement
itself was not void between the parties, en
forcement of that agreement by the courts
was void and prohibited by the Fourteenth
Amendment.
The Court: That is in your brief?
Mr. Weinberger: Yes.
The Court: What case is that?
Mr. Weinberger: Gandolfo v. Hartman, 49 297
Fed., 181, cited on page 16.
Last year in the State Court in Los Angeles,
California, Anderson v. Anseth, which is cited
on the same page, the court had a racial re
strictive covenant before it. The complaint
was dismissed on demurrer, on the ground
that judicial enforcement of the covenant was
violative of the Fourteenth Amendment. One
sentence from the opinion of Justice Clark
is this:
“ This Court is of the opinion that it
is time that members of the negro race are
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100
accorded, without reservation and evasions,
the full rights guaranteed them under the
Fourteenth Amendment of the Federal Con
stitution. ’ ’
That was followed by this interesting
dictum:
“ Judges have been avoiding the real
issue for too long. Certainly there was
no discrimination against the negro race
299 when it came time to calling upon its mem
bers to die upon the battlefields in defense
of this country in the war just ended.”
In the plaintiff’s briefs in this case and in
all similar proceedings in New York State,
reliance by those who wish to support the
covenants is always placed on Ridgway v.
Cockburn, which was decided in Special Term,
Westchester County, in 1937. Before analyz
ing Ridgway v. Cockburn it may be pertinent
to say that I doubt that that is authority for
anything at all. An opinion was written by
300 the Justice in 1937. The opinion was entered.
No decree, judgment, or order was entered
in that action, nor was any enforced. The
defendant remained in the building until last
year, from 1937 until 1945, a period of eight
years, and then moved, completely of her
own volition, not because of any threat of
judgment. Aside from that fact, however,
Ridgway v. Cockburn made no analysis of
the constitutional question at all. The opinion
itself showed that it relied entirely on Cor
rigan v. Buckley, and argued that Corrigan
v. Buckley in the United States Supreme
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101
Court once and for all decided the constitu
tional question, a misconception that is held
by many.
That there was no inquiry in Ridgway v.
Cockburn is shown by the fact that in the
four-page opinion the only reference to con
stitutionality is this one sentence:
“ It is sufficient to say that the United
States Supreme Court has held that a
covenant of this precise character violated
no constitutional right. (Corrigan v. Buck-
ley, 271 U. S., 323.)”
So if we go behind the scene there and
look at Corrigan v. Buckley, that case does
not hold what the opinion in Ridgway v.
Cockburn says it holds; then Ridgway v.
Cockburn is certainly not good law in New
York State.
The Fourteenth Amendment by its lan
guage, by the decisions, and without any ques
tion, applies only to the states; it does not
apply to insular possessions, it does not apply ^qo
to the District of Columbia. Corrigan v.
Buckley originated in the courts of the Dis
trict of Columbia and was concerned with a
man in the District of Columbia. The Four
teenth Amendment having no application,
certainly the decision in that case is no con
struction of the Fourteenth Amendment as it
applies to the courts of the states.
Furthermore, the question of judicial en
forcement was not raised in that case, and
even the question as to the validity of the
covenant was not properly raised on appeal,
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as the opinion of the United States Court
says in so many words.
There were two very interesting and, I
might well say, scholarly, unusually scholarly,
Law Review articles published last year
within a month of each other on the question
of the constitutionality of restrictive coven
ants—on the question, I should say, of the
unconstitutionality of judicial enforcement
of restrictive covenants,—The February,
1945, issue of the University of Chicago Law
Review, and the March 1945 issue of the
California Law Review. They are available,
I suppose, in all libraries, but for your Hon
or’s convenience I would like to hand them
to you.
The Court: I would like very much to have
them. I will return them to you when I am
through with them.
Mr. Weinberger: Before leaving this point
I should say, your Honor, that there is no
decision in New York State by any appellate
court, no Appellate Division decision, no
Court of Appeals decision whatever.
The Court: Do you mean to say that this
question has never gone up in this State?
Mr. Weinberger: No, sir, no case in the
Appellate Division, any of the Appellate Divi
sions. In fact, the only two reported cases
—no, they are not even reported. The only
other case in New York State, which is un
reported, Dury v. Neely, concerns itself
with the other Addisleigh covenant, the one
that has the four-months’ escape clause that
if at any time for a period of four months
103
a negro owns or occupies any building in the
block, and I believe also the adjoining block
the covenant may by declaration be voided
as against a particular piece of property.
Judge Cuff, in Dury v. Neely in 1942, up
held that covenant, relying, as bis opinion
shows, on Corrigan v. Buckley, and Ridgway
v. Cockburn, decided April 28, 1942.
The second point, your Honor, is that our
treaties, the treaties of the United States
with foreign nations, by the terms of the 308
Federal Constitution are the Supreme law
of the land, and that our present treaty ob
ligations are such that enforcement of this
covenant by this Court is prohibited.
The best definition of the significance and
meaning of foreign treaties is in the classic
Migratory Bird Case, where Congress passed
a statute protecting from hunters and others
birds which left Canada and came to the
United States to avoid the cold winters of
Canada. That statute was held unconstitu
tional and thrown out by the courts as an 309
invasion of the rights of the states. Follow
ing that the United States entered into a
treaty with Great Britain protecting these
migratory birds while they were sojourning
for the winter in the United States. Then
Congress re-enacted in substance the same
statute which had been held unconstitutional,
and that was upheld by the United States
Supreme Court as a proper constitutional
statute, as the supreme law of the land, as
treaty obligations with Great Britain over
rode all other restrictions.
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104
The Court: What treaty obligations do
you contend this violates?
Mr. Weinberger: The United Nations
Charter, the most solemn treaty, I might say,
that the United States has ever entered into, a
treaty not alone with one nation, but with
all the nations of the world. The General As
sembly of the United Nations is now meeting
in our back door, in this County and in the
adjoining County of Nassau.
311 Article 55 of the United Nations Charter
says:
“ The United Nations shall promote
* * # uniform respect for, and observance
of, human rights and fundamental freed
oms for all without distinction as to race,
sex, language, and religion.”
Article 56 says:
“ All members pledge themselves to take
joint and separate action in cooperation
with the organization for the achievement
312 of the purposes set forth in Article 55.”
Also, in March of last year in Mexico City
the United States met with the Latin Amer
ican nations and executed the Act of Chapul-
tepec which, among other things, states that
the signers will:
“ * * * prevent with all the means within
their power all that may provoke discrim
ination among individuals because of ra
cial and religious reasons.”
On this point I urge the United Nations
Charter, as that is a solemn treaty executed
by the United States with the principal na-
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105
tions of the world. The Act of Chapultepec is
a firm obligation of the United States, but
there is some question as to whether it has
the force of a treaty. In any event, the Act
of Chapultepec certainly declares public pol
icy of the United States.
There have been many cases, your Honor,
where treaties overrode state statutes. The
inheritance laws of the State of Virginia were
set aside in favor of a Swiss National be
cause of our treaty obligations with Switz- 314
erland.
The laws of descent of the District of
Columbia were set aside because of the treaty
we had with France.
Here in New York State at the time of the
liquidation of the Russian insurance com
panies the problem was first before the State
Courts and ultimately passed upon by the
United States Supreme Court as to whether
distribution among the creditors of the Rus
sian insurance companies should be in accord
ance with the Insurance Law of the State of 3 5̂
New York or whether the Litvinoff agree
ment governed, and the United States Su
preme Court held that the Litvinoff agree
ment governed and set aside the statutes of
the State of New York which were passed
expressly for the purpose of governing dis
tribution in such a situation. This was one
of the points in Gondolfo v. Hartman also.
Finally, your Honor, we submit that under
the present public policy of New York State,
as distinguished from and in addition to the
present public policy of the United States,
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for both reasons this covenant may not be
judicially enforced and also is void. We
look to the statutes for declaration of public
policy of a jurisdiction. In New York State
we have The Civil Eights Law, Section 40,
which forbids discrimination in places of
public accommodation and among applicants
for official positions in the public schools.
Section 41 of the Civil Rights Law, which
provides a penalty to a person aggrieved by
discrimination under Section 40.
We have penal provisions. Section 514 of
the Penal Law makes certain classes of dis
criminatory practices criminally punishable
as misdemeanors.
We have Section 700 of the Penal Law,
which says that all persons within the juris
diction of this State shall be entitled to the
equal protection of the laws of this State, or
any subdivision thereof, and that, “ No
person shall, because of race, color, creed
or religion, be subjected to any discrimina
tion in his civil rights by any other person
or by any firm, corporation, or institution or
by the State or any agency or subdivision of
the State.”
The Public Housing Law, Section 223, pro
hibits discrimination in public housing.
The Labor Law, Section 220, forbids con
tractors on public works projects from dis
criminating in hiring or employment prac
tices.
Since Ridgway v. Cockburn, which was in
1937, a year after that and a year before this
covenant was signed in 1939, the Constitution
107
of tlie State of New York was amended, or I
should say, a new Constitution was adopted—
The Court: The Court is well aware of
that, having sat as a delegate in that Con
stitutional Convention.
Mr. Weinberger: And Article X, Section
11, says:
“ No person shall be denied the equal pro
tection of the laws of this state or any sub
division thereof. No person shall, because
of race, color, creed or religion, be sub-
jected to any discrimination in his civil
rights by any other person or by any firm,
corporation, or institution or by the state
or any agency or subdivision of the state,”
very close to what Section 700 is. Section
700 of the Penal Law implements the Con
stitution and makes it a misdemeanor, as
well as a declaration of policy.
This is a fundamental law and, sir, the
fundamental public policy of the State of
New York, this section in the Constitution, or>j
and it shows that New York State was not
satisfied with the broad and fine language of
the Fourteenth Amendment. I am not criti
cizing the Fourteenth Amendment, but I cer
tainly am approving of the legislature of
the State of New York, which went beyond it
and extended the equal-protection clause that
is to be found in the Fourteenth Amendment
as a prohibition against the states, and in
our state law made it also a prohibition
against individuals, against these plaintiffs,
among others.
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108
322
323
324
The Executive Law, Section 125, which
with several other sections created the State
Commission against discrimination, was
adopted in 1945, and the language of it is as
direct and as fine a declaration of public
policy as can be found in New York statutes:
“ * # * the Legislature hereby finds and
declares that practices of discrimination
against any of its inhabitants because of
race, creed, color or national origin are a
matter of state concern, that such discrimin
ation threatens not only the rights and
proper privileges of its inhabitants but
menances the institutions and foundations
of a free democratic state.”
Section 125, and its following sections, were
concerned principally with employment, but
this preamble that is introductory to the sec
tions concerned itself with more than a par
ticular statute; it is a declaration of what is
now the public policy of New York State.
Perhaps the best place to look for the pub
lic policy of the United States, in fact, the
most critical place from my point of view,
would be the war cases, the Japanese curfew
cases decided in 1943 by the United States
Supreme Court, when many of us, perhaps
you might say all of us, were influenced to
some extent more or less in our reasoning by
the war hysteria and the war needs; but
despite that the United States Supreme
Court, in the Japanese curfew cases, by the
late Mr. Chief Justice Stone, said:
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109
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“ Distinctions between citizens solely be
cause of their ancestry are by their very
nature odious to a free people whose in
stitutions are founded upon the doctrine
of equality. For that reason, legislative
classification or discrimination based on
race alone has often been held to be a
denial of equal protection.”
In the concurring opinion Mr. Justice
Murphy said:
“ Distinctions based on color and ancestry
are utterly inconsistent with our traditions
and ideals. They are at variance with the
principles for which we are now waging
war. We cannot close our eyes to the fact)
for that centuries the Old World has been
torn by racial and religious conflicts and
has suffered the worst kind of anguish be
cause of inequality of treatment for differ
ent groups. There was one law for one and
a different law for another. Nothing is
written more firmly into our law than the
compact of the Plymouth voyages to have
just and equal laws. ’ ’
A further expression of public policy is
found in Mays v. Burgess, which is a Fair
Employment Practices Commission case,—
I am mistaken; it is a restrictive covenant
case in which Judge Edgerton in the dissent
ing opinion stated:
“ I can see no sufficient distinction from
the point of view of policy, between dis
crimination in employment and discrimina
tion in housing.”
326
0 0 7o M
110
Title 8, Section 42, to which I referred be
fore and, I believe, read, is an expression now
of policy as well as an enabling act for the
Fourteenth Amendment.
The Court: Let me ask you a question.
You read from Judge Edgerton. Was it, a
dissenting opinion?
Mr. Weinberger: Yes, a dissenting opinion.
The Court: What was the prevailing
opinion ?
329 Mr. Weinberger: Mays v. Burgess was a
District of Columbia case. The Fourteenth
Amendment did not apply.
On both the question of public policy and
also on the question of our responsibility
under our treaties to foreign countries, I wish
to draw your Honor’s attention to the 1945
case in the Supreme Court of Ontario, in Be
Drummond Wren, a case, I may say, ably and
nobly fought by the Canadian’Branch of the
American-Jewish Congress. The restriction
in suit there read:
330 “ Land not to be sold to Jews or per
sons of objectionable nationality.”
Judge MacKay, hearing the case, found,
without the benefit of a Federal Constitution,
without the benefit of any constitution, lean
ing slightly on anti-discrimination statutes
such as we have in New York, but leaning par
ticularly on the United Nations Charter and
the Act of Chapultepec, of public policy, de
clared the covenant void.
I want to make one more statement in con
clusion, your Honor, that there is a great
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deal more in this case than whether Samuel
Richardson has his legal rights to live in
Queens County instead of in a crowded apart
ment in New York, as a free man with dig
nity. This case presents to the courts of the
State of New York for the first, time fairly
and squarely whether or not the citizens of
New York State and perhaps citizens of the
United States shall live in a true democratic
society at least in reference to housing.
We ask your Honor to dismiss the case. 332
The Court: Up to the present time no dis
position is made on the Richardson motion to
dismiss, pending further argument.
(Recess until 2 o’clock P. M.)
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A fternoon S ession .
The Court: Mr. Silverstein, is it agreeable
to you that Mr. Pfeffer go ahead on the Rich
ardson motion before you make yours?
Mr. Silverstein: Yes.
The Court: Just as a matter of informa
tion, is there anybody else who will speak on
the Richardson motion?
Mr. Pfeffer: No.
The Court: All right, go ahead.
Mr. Pfeffer: I should like to state for the
record that the American-Jewish Congress is
interested in this case not merely because
we, as the negroes, as our brothers, the ne
groes, have been the victims of racial restric
tive covenants with increasing frequency, but
because we believe that the very existence of
112
a racial restrictive covenant imbues and im
plies an inferiority to one group of our
American citizenry that happens to be a
minority, and the same implication is trans
ferred to all other racial minorities- and
ethnic groups.
I should like to call to the Court’s attention
that not merely the negroes and the Jews
have been confined to ghettos by means of
racial restrictive covenants, but Chinese,
335 Americans of Mexican descent, and even the
original citizens of this country, the American
Indian. In some locality or other throughout
the country every one of these minorities has
been up against a racial restrictive covenant.
If your Honor please, the day of the racial
restrictive covenant is fast coming to an end.
In ten years the weight of authority will
throw them out. The State of California
seems to be taking the lead. The State of
New York generally takes the lead in
progressive action, either legislative or ju-
oog dicial. I do not think that we should allow
California to take the lead away from us. I
think that this Court has an opportunity to
manifest the progressive and liberal attitude
of the New York courts in cases involving so
cial policy. I am aware that the Court has no
power to satisfy its own feelings as to desir
ability, but that it must follow the law set
down in the Legislature and by judicial deci
sion. We are here to present to you, your
Honor, the arms, the weapons, the legal
meanings whereby this progressive and social
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113
step may be taken. I am not going to make
any speeches; I am going to present you with
solid legal argument, your Honor.
My friend, Mr. Weinberger, has covered
three points, I think, brilliantly. I do not
want to repeat what he has said, because I
have other things to say. I should, however,
like to add this one point on the constitutional
issue. As Mr. Weinberger has pointed out,
the Fourteenth Amendment is aimed at state
action. He has pointed out the United States 338
Supreme Court, Twining v. New Jersey case,
and in many other cases has shown that the
judiciary is as much a part of the state as is
the legislative and the executive branch, and
that action by the judiciary is state action as
much as action by the Governor, the Assem
bly, or the Senate.
The Supreme Court, however, has gone
further than that. In a very recent case the
United States Supreme Court held that the
owners of a housing development, a large
housing development, could not prohibit mem- 339
bers of the Jehovah’s witnesses Sect from
coming in there and proselytizing. The
United States Supreme Court had held pre
viously that the State under the Fourteenth
Amendment could not prohibit or restrict
freedom of religion, but in the civil rights
cases the court had held that the Fourteenth
Amendment did not aim at individual or pri
vate action. Here was private action. The
state had nothing to do with it. The owners
of a housing development said, “ We don’t
want Jehovah’s witnesses to come in here and
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114
interfere and disturb our neighbors.” The
United States Supreme Court said that when
a group of individuals in the form of an as
sociation or corporation gathered together
and in effect legislate over a specific area of
property or real estate within a state in the
Union, that that is a quasi state action, that
that is in effect a private government, that
it is no longer pure contract, that it is legis
lative action, which is action by people who
341 vote, who get together, who decide, who
argue, and therefore within the prohibition of
the Fourteenth Amendment, and the United
States Supreme Court invalidated state en
forcement of that regulation.
That, your Honor, is exactly the situation
here. These people got together, they had a
meeting just as if it was the Assembly in the
Legislature. They had a chairman, they
made a motion, and then they argued and
discussed, and then passed a resolution. In
effect that is legislation by a private govern-
342 ment. That, your Honor, we contend, is
within the inhibition of the Fourteenth
Amendment.
The rest of the constitutional issue, as I
say, Mr. Weinberger has very completely and
adequately covered. I want to cover two
points only which Mr. Weinberger has not
touched. It is our contention—and this has
never adequately been considered—that a
prohibition against alienation for a period in
excess of 21 years, or, as a matter of fact,
any length of time, is an unreasonable re
straint on alienation in violation of the com-
° * u Colloquy
115
mon and statutory law of the State of New
York. Section 42 of the Real Property Law
and Section 11 of the Personal Property Law
provide that a remainder which is limited by
a contingency which may or may not occur
within a period measured by two lives in be
ing is impossible of validity and is illegal.
The Court: Is that in your brief!
Mr. Pfeifer: It will be when our brief is pre
sented to you; that those sections are modifi
cations of a long existing common law policy 344
which invalidated restraints on alienation.
The only qualification and exception to that
policy was that limited reasonable restraints
on alienation would not be held illegal, and
the test in all cases when you have a restraint
on alienation for a period of years is, is that
restraint reasonable! There are cases going
back to'the 14th Century on that. An ab
solute restraint on alienation, where I agree
that I shall not sell this land for ten or fifteen
or thirty or until 1975, as in this case, is
void and illegal unless we can show that 345
under the facts and circumstances of a par
ticular case such restraint is reasonable. The
American-Jewish Congress submits to your
Honor that this case may not be adjudged
reasonable, a restraint which prohibits the
sale of land to American citizens and resi
dents of our city and state.
The Court: Is there any time limit in this
restraint?
Mr. Pfeifer: To 1975, made in 1939, which
is for a period of approximately thirty-six
years.
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There have been cases, your Honor, which
have held that a restraint on the use of prop
erty is legal, because the common law in
hibition which goes back as I say, to the
14th and 13th Centuries and before was
not against the use of property but against
restraint on its alienation; so for this purpose
we might say that a covenant which says
that no negro shall occupy this property, in
and of itself conceivably might be valid—we
do not concede it at all for this argument—
but a covenant which says that it shall not be
purchased or sold to a negro is a restraint on
alienation and not on use and is illegal. That
is the covenant here and that is the relief
which the plaintiffs are asking your Honor
to give them, to prevent the sale to negroes.
Now, I come to my second clause.
This is not a court of law, your Honor; this
is a court of equity. The plaintiffs are not
asking for judgment for a verdict of dam
ages; they are asking for equitable relief in
the form of specific performance and injunc
tion. I do not have to cite to your Honor
cases that hold that specific performance is
an extraordinary remedy, that equitable relief
is within the discretion of the court of equity,
and that when a plaintiff appears before a
court of equity and asks that court to exercise
its discretion in the extraordinary form of
specific relief punishable by contempt in a
person, that that court may consider and must
consider all the equities of the case, must bal
ance and weigh the equities of the plaintiffs
117
as against the equities of the defendant. Time
and time again courts of equity have refused
specific relief even though a prima facie case
at law has been made out. The courts, bal
ancing the equities, said, “ We leave you to
your remedy at law. ’ ’
We submit that this Court, before it de
cides on how it shall exercise its discretion,
must balance the equities not merely of the
plaintiff, Mr. Kemp, or of the defendant, Mrs.
Kubin, or of even the co-defendant, Samuel 350
Richardson, hut of the whole public of the
State of New York in general and specifically
the members of the negro race of this state.
This covenant is not aimed at Samuel Rich
ardson. He is merely a figure, he is a rep
resentative. It is aimed at all negroes. If
somebody else of the colored race would come
in he, too, would be subject to this covenant.
Therefore, this Court must weigh the equities
not merely of Samuel Richardson—a business
man with a family, a child in college, a nephew
and niece also in college, living with him, hon-
orable, fine citizens—but of the whole negro
citizenry of this city.
This is not radical law, your Honor. Our
briefs will cite you cases where the court con
sidered, in deciding whether or not to allow a
nuisance to continue or to abate, either to
abate it or to allow it to continue with a rem
edy at law—the court considered how many
people would be out of work, what would be
the economic effect on the storekeepers and
the fate of the people in the village. The
court was not merely considering the plea that
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this land may have been polluted by the fact
that some refuse of this big factory was on
the water; it was not considering the owner
or the factory; it was considering the em
ployees, their families, the people of the city,
and the fact that this plant was an economic
asset of this locality.
We are asking you, your Honor, to do ex
actly that. We are asking you to consider the
people of the 'City of New York and the negro
citizenry of New York. I am not going to
burden this Court with social statistical facts.
They are in our brief. We submit with au
thority that this Court may judicially note
economic and social facts which are matters
of record and which may be gathered from
the United States Bureau of Statistics and
the statistics of business. Your Honor will
appreciate that much better when he reads
our brief. We have an appendix showing
those facts.
There are two certain startling facts which
I think your Honor should know. In the City
of Chicago 80% of the city is bound by re
strictive covenants against the negroes. In
80% of the City of Chicago a negro cannot
move in unless the court will throw out these
restrictive covenants. We don’t know in New
York. No study has been made how many
there are in New York, but they are abound
ing in this Borough of Queens. The least
densely populated Borough of Queens, which
offers the greatest opportunity to take the
overflow of residents of Manhattan, is
hemmed in, is protected by a wall of paper,
119
paper which persons sign that they will not
sell to negroes.
The most densely populated section in the
whole United States is a block in Harlem. If
that density of population in that block were
spread throughout the rest of the population,
the whole one hundred thirty-five to one hun
dred forty million people in the United States,
if they were residented as densely as in that
block in Harlem, could reside in one-half of
the City of New York. That, your Honor, 356
gives you an idea of what the negro people
are up against, and they can’t get out. They
can’t get out why? Because courts of equity
have said that they can’t do anything about it,
that this is a private fight between Mr. Kemp
and Mrs. Rubin, and nobody else is involved,
that Mrs. Rubin put her hand and seal on it
and she is bound by it, without considering
that a negro population of millions of people
in this country is damaged by it and are sig
natories to that contract in fact, if not in
name. ___oQ /That does not only injure the negro people,
your Honor. Our files will show the tre
mendously higher death rate among the ne
groes in New York and unemployment and
lower wage scale among negroes in New York,
the higher rent which negroes must pay for
worst accommodations in this city because
they are hemmed in, they are congregated in
what has aptly been called black ghettos.
That is the social interest which must be con
sidered by this Court in deciding whether to
exercise its discretion in favor of giving spe
cific relief in this case.
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The Court cannot close its eyes to that.
That is public policy; that is public interest.
The whole public pays for the race tensions,
for the ill-health, for the unemployment of
the negro people, not the negroes alone, and
that is a fact which we submit this Court must
answer.
I will conclude with this: In 1938 the Con
stitution of this State, in connection with
which convention your Honor was a member,
adopted a revolutionary concept in the field
of constitutional law. The Fourteenth
Amendment adopted the revolutionary con
cept that no state may discriminate against
any person by reason, of race, creed, or color,
and on the basis of that limited decision a
coordinate branch of this court, Mr. Justice
Davis, of Westchester, held that action by,
individuals did not violate that amendment;
but the New York Constitution went one step
further. Fifty years had passed, and in that
fifty years it was found in New York that pro
hibitions against state action were insufficient
and inadequate. The New York Constitution
said in express words that no person shall be
discriminated against not merely by the state,
but by any person or individual. That, your
Honor, was a revolutionary concept. That is
the difference between Ridgway v. Cockburn
and Kemp v. Rubin. This case is after 1938;
that was before. In between the New York
Constitution has said, “ We are opposed to
and we prohibit discrimination not merely
by state or state agencies, but by private in
dividuals, firms, or corporations.”
121
Defendant Rubin’s Motion to Dismiss Complaint ^61
Your Honor, with that I rest. I would like
your Honor’s permission to present our brief.
It is not yet exactly in the form in which we
can give it to you. We will have it in a few
days.
The Court: That is perfectly all right.
Mr. Pfeifer: Thank you.
Mr. Silverstein: If the Court please,-----
The Court: You are not on this motion!
You are making your own motion?
Mr .Silverstein: I am making my own mo
tion.
The Court: I will reserve decision on this
motion at this time and on the motion made
by the defendant Richardson to dismiss the
complaint in so far as it affects him.
Mr. Weinberger: Your Honor, I think it
would be pointless, in fact, perhaps improper,
for us to continue in the case. The case, as
far as Richardson is concerned, is over; that
is, the proof is in, subject to your Honor’s
decision on the motion.
The Court: Except that in the presenta
tion of Mr. Silverstein’s proof on behalf of
the defendant Rubin you may wish to cross-
examine. If you want to leave, I have no ob
jection,
Mr. Weinberger: No. Actually I would
like to hear the balance of this trial, but I
want the record to show that we have rested.
The Court: The record does so show.
Mr. Weinberger: All right, sir.
Mr. Silverstein: The formal motion is to
dismiss the complaint on the ground that the
plaintiff has failed to establish a prima facie
case.
362
363
122
The Court: To dismiss the complaint in so
far as it relates to the defendant Rubin?
Mr. Silverstein: Yes.
The Court: All right. Now, you wish to
make your argument, don’t you?
Mr. Silverstein: The plaintiff in its com
plaint alleges the execution of these two in
struments, or rather, that one is the counter
part of another. There is no reference in
either instrument to the other. Be that as it
365 may, the instruments they rely on starts off
with the preamble, “ Whereas the parties
hereto desire for their mutual benefit as well
as for the best interests of the community and
the neighborhood.”
Now, when they refer to “ community” and
“ neighborhood” they refer to Addisleigh.
The witnesses bounded Addisleigh formally
when I asked them where Addisleigh was lo
cated, and they told me that on the west it was
bounded by the east side of Marne Place,
which is 173rd Street, then a continuation of
0gg 112th Avenue to the railroad, then south by
the Long Island Railroad to Linden Boule
vard, and then along Linden Boulevard back
to the point of beginning. That embraces an
area of 29 blocks approximately.
The witness Lutz has testified that it was
part of a general plan and scheme in the
neighborhood to place restrictions on the
properties of various landowners. All they
have established thus far is that on two blocks
some of the people who live in those two
blocks signed what is purported to be a re
strictive covenant against a particular class
of persons. I submit that adjoining land-
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123
owners may make agreements so far as they
are not contrary to public policy.
I also submit that where it is a common plan
or scheme, if the plan or scheme is not estab
lished to cover the territory intended, that the
plan or scheme must fail.
The remedy by way of injunction which
this Court is called upon in the exercise of
its discretion to grant is a very drastic one,
and the courts have held that it will not
be exercised merely because the plaintiff has 368
shown that there has been a violation of the
so-called covenant. There must be irrepar
able damage established. The plaintiffs in
their complaint specify: ‘ ‘ The houses of the
plaintiffs Kemp and Lutz are of large rental
value and are desirable residences, but said
rental value and said desirability as resi
dences, as well as their fee value, depend
wholly upon the exclusion from the vicinity,
and especially from the premises owned by
the plaintiffs and the defendant Sophie Ru
bin, of persons who are negroes or persons of ogg
the negro race or blood or descent.”
There has been no proof offered to this
Court whatsoever by the plaintiffs to estab
lish that any injury has resulted to these
plaintiffs or to anyone who signed this so-
called covenant. Merely because there is
what appears to be a violation of an in
strument as solemn as a covenant, the Court
will not lend its arm in the enforcement by
judicial decree where the result would be
harsh, inequitable, and contrary to public
policy.
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I respectfully submit, in the words of Mr.
Justice Holmes, of the Supreme Court, when
he said that the law is a living thing and that
it breathes, that it moves, that it is governed
by the trends and by the times, that that
which was good precedent in years gone by
can no longer, because of the social trends
that have come about, be relied upon as part
of the public policy of any agency or any
government. The best illustration I can give
to your Honor at this time is the Child Labor
Laws. Passage of such laws at one time was
unconstitutional. Such laws eventually were
looked upon as constitutional.
There are any number of judicial decisions
made by our Supreme Court which frowned
upon the constitutionality of certain acts
passed by our Congress which in later years
were recognized as compelling necessities by
sheer force of the times which made it neces
sary for these things to come about.
Certainly it will be harsh and inequitable,
on the meager proof offered by the plaintiff,
which was nothing more than the esecution
of this covenant, without the proof of any
loss or damage on the part of the plaintiff—
and certainly there was none—for this Court
in the exercise of its discretion to render a
judicial decree seeking to enforce a provi
sion which today is frowned upon, which
today is no longer the public policy of this
state or of the United States, and most prob
ably will be against the public policy of the
entire United Nations. If such covenants can
be recognized as enforceable by injunctive
125
relief, then all minorities can be foreclosed
very effectively from ownership or occupancy
not only in any given area, but in every given
area in the United States of America.
Inasmuch as plaintiff has failed to estab
lish that it will suffer irreparable damage,
this Court should not lend its arm to a decree
which will restrain minorities from enjoy
ing the same benefits of ownership and oc
cupancy of property as any citizen, as any
person, regardless of whether or not he be a 374
citizen, is entitled to enjoy in this country of
ours.
By reason of the nature of the proof of the
plaintiff’s complaint, I respectfully suggest
that the complaint be dismissed.
The Court: I have reserved decision on
the other motion and I reserve decision on
this, pending the answer of both arguments
or both sets of arguments, I should say, by
the attorney for the plaintiffs. Do you want
to be heard now!
Mr. Newton: Yes, unless your Honor 3-5
wants to take it in the form of briefs. Prac
tically everything that has been said is an
swered in my brief. There is one new matter
that was brought up in Mr. Weinberger’s
argument that has not been answered and
that I am not immediately prepared to an
swer. That is the question of the fact of a
judicial decision on a contract between pri
vate parties as coming under the Fourteenth
Amendment. That, frankly, is new to me.
The Court: You mean that case involving
the Chinese in California, the G-andolfo case?
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126
Mr. Newton: Yes, that is the one.
The Court: I have no objection to giving
you as much time as you need to answer it by
way of brief. I would like you to address
yourself either now or in your brief, unless
you have already done so,—I haven’t quite
had time to read these briefs yet; they are
very voluminous—to the question of damage.
Do you do so in your brief f
Mr. Newton: Yes. I shall read very
377 briefly from page 17 of our brief, a decision
of the Court of Appeals in Trustees of Co
lumbia College vs. Thatcher, 87 N. Y. 311-21.
I am quoting from i t :
“ Now having before us a covenant bind
ing the defendant, and his breach of it, if
there is nothing more, the usual result must
follow, viz, an injunction to keep within
the terms of the agreement; for the ease
would come under the rule laid down in
Topping vs. Eckersley, 264, 2 K. & J . : ‘If
the Construction of the instrument be
378 clear, and the breach clear, then it is not
a question of damage, but the mere cir
cumstance of a breach of covenant affords
sufficient ground for the Court to interfere
by injunction.’ ”
The Court: You say that is still the law?
Mr. Newton: That is still the law, your
Honor.
The Court: Have you anything to add to
that, Mr. Silverstein?
Mr. Silverstein: No, I have nothing to add
except to say that it may afford sufficient
ground for a court to interfere by way of in-
Colloquy
127
junction. It still remains a matter of dis
cretion for this Court to exercise.
The Court: There is no doubt about that,
and there are other questions to be consid
ered. I am not trying to make this the sole
question. The only thing is—and you made
the point several times in your argument on
the motion to dismiss—that there was no
irreparable injury shown.
Mr. Silverstein: That is right.
The Court: I think that effectively answers 380
that point. However, I do not want to fore
close any of you or myself from further con
sideration of this and other point.
I think that the best way to dispose of this
matter finally, unless by common consent we
all change our minds, is for all sides to ex
change briefs after the presentation of the
evidence is finished, with a reasonable time
to all sides to reply, so that the Court will
finally have the benefit, when it comes to
making a decision, of the research of all the
learned counsel, because I am sure that all ggq
of you can contribute something that will
make the Court’s difficult task that much less
difficult. Is that plan agreeable to everybody?
Mr. Newton: Yes, your Honor.
Mr. Silverstein: Yes.
The Court: Then, you do not wish to argue
further now?
Mr. Silverstein: Not at this time, no.
The Court: I am not foreclosing you. It
is purely voluntary on your part.
Mr. Silverstein: Oh, no. I had anticipated
that we would do it by briefs.
The Court: I will reserve decision on both
Colloquy
128
og9
motions and the case will proceed under the
arrangement just outlined. Let the record
show now that unless otherwise specified,
when we refer to “ the defendant” we are
referring to the defendant Rubin, because
the defendant Richardson has rested.
Mr. Silverstein: Yes.
Irving L. Schuh—For Defendant Rubin—Direct
I bvixg L. S c h u h , residing at 2953 Nostrand
383 Avenue, Borough of Brooklyn, City of New York,
called as a witness in behalf of the defendant
Rubin, being first duly sworn, testified as fol
lows :
Direct examination by Mr. Silverstein:
Q. Mr. Schuh, what is your business or pro
fession? A. I am an attorney-at-law.
Q. Are you employed? A. Yes, I am employed
in your office.
Q. You are associated with me? A. I am.
Q. For how many years have you been prac-
384 ticing law? A. Since—nine years.
Q. During the course of your practice have you
had occasion to make searches and examinations
of titles?
Mr. Newton: His qualifications are ad
mitted.
The Court: Qualifications are conceded.
Q. Mr. Schuh, did you make an examination of
the records maintained by the Register of the
County of Queens in so far as they pertain to
the property located in the block in which Mr.
Rubin resides? A. I did.
129
Q. I should say in which Mr. and Mrs. Rubin
reside. With respect also to the block in which
the plaintiff Lutz resides? A. I did.
Q. Did you also make an examination of title
with respect to those blocks which are located in
the Addisleigh section of St. Albans bounded on
the west by Marne Place, on the north by 112th
Avenue, on the east by Long Island Railroad,
and on the south by Linden Boulevard? A. I did.
The Court: May I make a suggestion in
the interest of expedition? He is going to
testify to facts that are matters of record?
Mr. Silverstein: Yes.
The Court: Why don’t you use leading
questions? I don’t think Mr. Newton will
object.
Irving L. Schuh—For Defendant Rubin—Direct
Q. Did you find of record in the blocks in which
the plaintiffs reside instruments known as Plain
tiffs’ Exhibits 4 and 5? A. I did.
The Court: Those are the restrictive cove
nants?
The Witness: Yes. 387
Q. Do you know on what sections on the land
map of Queens County the blocks which you have
just bounded for us are located? A. Practically
all are in Section 51.
Q. Are they in any other section? A. I believe
a couple of the blocks are in another section.
Q. Would they be in sections 52 and 57? A.
Yes.
Q. Of approximately how many blocks? A.
130
Q. Including the two blocks in which the plain
tiffs and the defendant reside? A. That is correct.
Q. Now, in how many other blocks aside from
the two blocks in which the plaintiffs and the de
fendant reside did you find of record covenants
similar in form to Plaintiffs’ Exhibits 4 and 5?
Mr. Newton: I object to that as imma
terial, your Honor.
The Court: Sustained.
Mr. Silverstein: Will your Honor take itO Q Q . . J
ooa subject to connection?
The Court: All right.
Mr. Silverstein: If I can’t connect it, then
on motion it will be stricken out.
The Court: All right, I will take it that
way. I will take it subject to connection with
the understanding that if it is not properly
connected I will entertain a motion to strike
out.
Mr. Silverstein: That is right.
A. In none of the remaining land blocks did I find
2QQ a covenant similar in form to the ones that are
the basis of this action.
Q. Did you find of record, with respect to the
blocks in Section 51, 52, and 57 on the land map
of Qiieens County, covenants of any other type
or form other than the type or form of Plaintiffs’
Exhibits 4 and 5?
Mr. Newton: I object, if the Court please,
to the question as being immaterial.
The Court: It sounds to me like the same
question.
Mr. Silverstein: The first question was:
Did you find any covenants in form similar
3 8 8 Jrving L. Schuh—For Defendant Rubin—Direct
131
to these in any other blocks? The answer
was “ No” .
(The last question was read.)
The Court: There might be all kinds of
covenants.
Mr. Silverstein: He will tell us what he
found.
Mr. Newton: I am objecting to it as being
immaterial, what covenants of record he found
in respect to other blocks. 3g2
The Court: I assume that you want this
on the same basis that he answered the pre
vious one?
Mr. Silverstein: On the same basis.
. The Court: Subject to a motion to strike
out if not properly connected.
(To the witness): Did you?
The Witness: Yes.
By Mr. Silverstein:
Q. I show you a certified copy of a paper
dated July 26, 1943, recorded in the office of the 393
Begister of the County of Queens on August 26,
1943, in Liber 4734 of Conveyances, page 467, and
ask you if that is one of the types of covenants
you found with respect to the property in Addis-
leigh.
Mr. Newton: I object to that as immaterial.
Mr. Silverstein: Shall we say that he has a
general objection to everything?
The Court: Yes, along this line. I think
you ought to agree that you have an objection.
We are taking all this subject to a motion to
strike out.
Irving L. Schuh—For Defendant Rubin—Direct
132
394 Irving L. Schuh—For Defendant Rubin—Direct
Mr. Newton: All right, your Honor.
The Court: So your rights are protected.
A. Yes.
Q. I show you another instrument, dated June
2, 1941, recorded January 10, 1942, in Liber 4513
of Deeds, page 293, and ask you if your examina
tion revealed such covenant of record1? A. Yes.
Mr. Silverstein: May I offer them in evi
dence as two separate exhibits?
395 Mr- Newton: I object, if the Court please,
on the ground that they are immaterial. It
seems to me that when it comes to putting-
documents in evidence, that ought to be held
up until such time as they are properly ad
mitted.
The Court: Yes, I am afraid I will have
to exclude them at this time, because we are
taking them subject to connection.
Mr. Silverstein: That is right.
The Court: Otherwise we would be putting
a lot of things in the record that should not
ggg be there if I decide to exclude them. I will
sustain the objection at this time. Mark
these for identification. When we finally de
cide upon the relevancy of this evidence we
will either let them in or exclude them.
Mr. Silverstein: That is right.
(Marked Defendant’s Exhibits A and B,
for identification, Rubin.)
By Mr. Silverstein:
Q. In the course of your examination of the
records of the Register of Queens County with
respect to the blocks contained within Sections 51,
133
52, and 57, will you tell us what your examination
of the records revealed, what you found in your
search with respect to agreements similar in form
to Defendant’s Exhibits A and B, for identifica
tion ? A. All of the land blocks of Addisleigh, the
twenty-nine of them, are covered by covenants of
that type, that is, the type offered for identifica
tion. In substance they can be summed up and
differentiated from the covenants that are the
basis of this action in that they have what is called
an escape clause. The covenants that bind Ad- 398
disleigh in the main limit Addisleigh north by
112th Avenue, east by the Long Island Railroad,
south by Linden Boulevard, and west by 173rd
Street, and as a further provision in there that
in the event—well, the signers of the covenant
agree not to sell or convey to persons of the colored
race.
Mr. Newton: That is in the document it
self, isn’t it? I don’t like to interrupt.
By the Court:
Q. Well, you say that this covenant that was 399
just kept out of evidence covers all the blocks?
A. No.
Q. Most of the blocks? A. No, not this par
ticular covenant, but all the covenants that are
on file in Addisleigh are of this type.
Q. Well, aren’t these that are the subject of
this lawsuit on file covering part of Addisleigh?
A. No. The ones that are the basis of this action
are—the only ones filed are the two that are in
evidence.
Q. Aren’t those two blocks in Addisleigh? A.
Yes.
OQ7Irving L. Schuh—For Defendant Rubin—Direct
134
400 Irving L. Schuh—For Defendant Rubin—Direct
Q. Aren’t they covered by these covenants,
Plaintiffs’ Exhibits 4 and 5? A. Yes. If I may
explain it-----
Q. Then, why do you need to summarize it for
us? The testimony shows, if I recall it, that the
covenants which are the subject of this lawsuit
cover two blocks. Plaintiffs’ Exhibit 4 covers one
block and Plaintiffs’ Exhibit 5 covers another
block. Now, there is also testimony by you that
most of the other blocks in Addisleigh are covered
401 by the covenants as set forth, which are not be
fore us in evidence, but as set forth in Defendant
Eubin’s Exhibits A and B, for identification; is
that right? A. Right.
Q. You are just telling us a factual story which
we have in the record now.
The Court: Now, ask your next question.
By Mr. Silverstein:
Q. And Defendant Rubin’s Exhibits A and B,
for identification, are recorded with respect to
every block in the area known as Addisleigh as
you have bounded it, is that so? A. Agreements
of that type?
Q. Yes. A. Yes.
By the Court:
Q. Let me ask you this question: Are the two
blocks in question in this lawsuit—there are two
blocks in question in this lawsuit—covered also
by agreements of this type, meaning the----- A.
Yes.
Q. The one with the defeasance clause, or the
escape clause, rather? A. Yes.
135
Irving L. Schuh—For Defendant Rubin—Direct ^03
By Mr. Silver stein-.
Q. When yon say they are covered, you mean
the instruments are indexed against those blocks?
Mr. Newton: Wait a minute. That doesn’t
mean anything to me. It is a question of sig
natures and the owners of the property.
Mr. Silverstein: That is just the thing I
want to clear up. Mr. Schuh does not want
to convey the impression that they are signed
by the people who signed Plaintiffs’ Exhibit 404
4 and 5.
The Court: That is what I mean.
Mr. Silverstein: No.
The Court: Rubin and Lutz and Kemp are
in this lawsuit. Rubin and Lutz and Kemp
have signed agreements such as appear in
Plaintiffs’ Exhibits 4 and 5. We all agree
on that.
Mr. Silverstein: That’s right.
The Court: There is a restrictive covenant
signed by Lutz, there is a restrictive covenant
signed by Rubin, and there is a restrictive
covenant signed by Kemp, in which they say
they will not sell, and the escape clause, as we
have been calling it, is not in that covenant.
Isn’t that the fact?
Mr. Silverstein: Yes, sir.
By Mr. Silverstein:
Q. Now, there is a different kind of agreement.
We shall call it, with everybody’s consent, the
escape type, just for identification. A. Yes.
136
Irving L. Schuh—For Defendant Rubin—Direct
By the Court:
Q. Is there such an agreement on record signed
by Rubin, Lutz, and Kemp? A. No.
Q. That is what I was trying to find out. In
other words, I want to know if they signed both
types of agreement or only one. A. No.
Q. Only one? A. Only one.
The Court: All right, I think we all agree
on it.
407 Mr. Silverstein: That is all.
Mr. Newton: No questions, your Honor.
Mr. Silverstein: Just one more question.
By Mr. Silverstein:
Q. These covenants with the escape clause in
them, were any of them executed prior to the date
of the execution of the Rubin-Kemp-Lutz type of
covenant ?
Mr. Newton: That is a little different ques
tion. I assume the objection holds with re-
4.08 spect to that question as well as with respect
to the others?
The Court: I would just as soon you with
drew your objection to this question. I do
not see the relevancy of it, but if it has any
relevancy, let us have it.
"Mr. Newton: All right.
The Court: Were any of these prior or
subsequent to ?
The Witness: They were all executed sub
sequent to the covenants known as Plaintiffs’
Exhibits 4 and 5.
Mr. Silverstein: That is all.
137
Mr. Silverstein: Now, proof is being
given to you not in the order I would like
to give it to you.
The Court: I have no objection to the
order. Follow any order that suits your con
venience and the availability of your wit
nesses.
Vera G. Jenkins—For Defendant Rubin—Direct
V eba Gr. J e n k in s , residing at 24 Yale Place,
Rockville Center, Long Island, New York, called 410
as a witness on behalf of the defendant Rubin,
being first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Is this your signature, Mrs. Jenkins, to
Plaintiffs’ Exhibit 4, in evidence, the last signa
ture on the page? A. Yes.
Q. At the time this instrument was presented
to you do you remember the name of the person
who brought it to you? A. Mr. Richardson.
Q. Does Mr. Richardson live in Addisleigh
Park? A. He did at the time he brought it to us. 411
Q. Did you live in Addisleigh at the time? A.
Yes, we did.
Q. On whose block did you live; Mr. Lutz’s or
Mr. Kemp’s? A. Mr. Lutz’s block.
Q. Are you a member of the Addisleigh Park
property Owners Association? A. We were at the
time we owned property there.
Q. Was Mr. Richardson associated with that
organization? A. He was elected president.
Q. Was he the president then? A. I believe so,
or was shortly after elected president.
138
Q. Did he come to you with tMs instrument? A.
He did personally.
The Court: So that we do not have any
confusion, this is a different Richardson from
the defendant Richardson, isn’t it?
Mr. Silverstein: Yes, that is right.
The Court: What Richardson was this?
What was his first name?
Mr. Newton: Roy.
Mr. Silverstein: Now or formerly the pres-
ident of the Addisleigh Park Association.
Q. When this paper was brought to you by Mr.
Richardson did he have a conversation with you?
A. Yes, he did.
Q. Was your husband present at the time? A.
He was.
Q. Will you tell us what the conversation was?
Mr. Newton: I object to that as incompe
tent, irrelevant and immaterial.
The Court: Sustained.
Mr. Silverstein: May I argue the point ?
414 The Court: It is a very simple point. The
case here is on the validity of an agreement.
You are not seeking to have the agreement
set aside on the ground of fraud or mistake.
You cannot attack the agreement that way.
Mr. Silverstein: I am trying to show, as
appears by my answer, that what purports to
be an agreement entered into between these
people was part of a general scheme and plan.
I plead it in my answer.
The Court: What paragraph?
Mr. Silverstein: My first defense, begin
ning at page one of my answer.
412 Vera G. Jenkins—For Defendant Rubin—Direct
139
The Court: Well, I don’t think this is ad
missible, but in view of the fact that there is
no jury present whose minds can be affected
adversely, I will take it and I will reserve de
cision on a motion to strike out or to exclude
it. If I decide to exclude it I will notify you
before the trial is over.
Mr. Newton: Your Honor, before you rule
finally on that, will you please read pages 9
and 10 of my brief?
The Court: I think you are right. I was 416
just doing it as a matter of convenience. I
shall stick to my original resolution and sus
tain the objection. You may have an excep
tion. I read your pleading and I said, after
reading your pleading, that I did not believe
that it belongs in, because the instrument is
full and complete on its face and there is no
attack on the instrument.
Mr. Silverstein: There is no attack on the
basis of fraud.
The Court: Well, how old is this instru
ment? Since 1936 or something?
Mr. Silverstein: 1939.
The Court: There is nothing in the instru
ment that says that it shall not be recorded
unless a certain number of people agree. The
instrument seems to contain all the elements
of an agreement. Whether that agreement
is good on other grounds is something that I
am not prepared to say right now, but in so
far as one considers the elements of a con
tract, I think that on that basis you will be
violating the rules and I would have to ex
clude the testimony. I will exclude it.
4 - 1 ^Vera G. Jenkins—For Defendant Rubin—Direct ^ xo
140
41R
Mr. Silverstein: Exception. Just one
question of Mrs. Jenkins.
By Mr. Silverstein:
Q. Aside from the paper that contains your sig
nature was there any other paper submitted to
you by Mr. Richardson! A. No, sir.
Q. At any subsequent date! A. No, sir.
Q. Pertaining to your premises! A. None at
all.
4^9 Q. Or pertaining to your premises in connection
with any of the persons who were the owners of
property and who signed with you Plaintiffs’ Ex
hibit 4! A. No, sir.
Q. There was no other paper ever presented!
A. No, sir.
Mr. Newton: No questions.
° Beasley D. Kelly—For Defendant Rubin—Direct
B easley D. K elly , residing at 109-48 175th
Street, Jamaica, Long Island, New York, called as
a witness in behalf of the defendant Rubin, being
4-0 first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Kelley, will you keep your voice up!
What is your business or occupation! A. Real
estate salesman.
Q. How long have you been a real estate sales
man! A. Since 1939.
Q. Whom are you employed by! A. I was first
employed by Plugo R. Haydon. I am now em
ployed by Edward Brown.
Q. Where is your office now located! A. 110-14
Merrick Road.
141
Q. Is that in Jamaica! A. Jamaica.
Q. Are you familiar with the neighborhood
known as Addisleigh, in St. Albans! A, Well,
very familiar with it. I have traveled all through
there. I have a lot of friends live in there.
Q. For how many years have you been familiar
with that area! A. Since 1939.
Q. Did you at my request make a survey of
Addisleigh with respect to the section south of
112th Avenue, west of the Long Island Railroad,
north of Linden Boulevard, and east of the west 422
side of 173rd Street and Sayres Avenue, in St.
Albans! A. I did.
Q. Did you make such a survey! A. I did.
Q. Did you go from house to house in each
block! A. From house to house in each block, yes,
sir.
Q. Can you tell us from your investigation ap
proximately how many colored families reside in
the Addisleigh Park section of St. Albans!
Mr. Newton: I object to the question as in
competent, irrelevant and immaterial.
The Court: Well, isn’t one of the defenses 423
that the character of the neighborhood has
changed and that therefore the agreements
have become inoperative!
Mr. Silverstein: Yes.
The Court: I think that on that score I
ought to take it.
Mr. Newton: If your Honor please, I want
to make my objection clear for the record,
anyway. I object to this survey at this time
of the two blocks Nos. 1314 and 1315, which
are the blocks covered by the covenants.
The Court: I assume that in getting this
Beasley D. Kelly—For Defendant Rubin—Direct ^ 2 1
142
424 Beasley D. Kelly•—For Defendant Rubin—Direct
picture we will get a picture of the whole
neighborhood and the two blocks.
Mr. Newton: Then, further, I object to any
present census, inasmuch as it doesn’t show
any change since the date of the covenant.
Mr. Silverstein: We will show the dates
when title was acquired.
The Court: I will say now that if he
doesn’t show any change since the date of the
covenant, I think Mr. Silverstein would agree
425 that he would not have a very good point.
By Mr. Silverstein:
Q. All right, will you tell us approximately how
many colored families you found in the Addisleigh
section of St. Albans? A. I found approximately
about 50 or 60 families.
By the Court:
Q. Wait a minute. You went from door to
door? A. From door to door.
Q. From house to house? A. That’s right.
426 Q. Why do you have to tell us approximately 50
or 60? Can’t you tell us how many you found?
Didn’t you keep a record? A. There was a num
ber of them was out and I didn’t see them.
Q. Well, how many people did you find? A.
Fifty.
Q. Exactly fifty? A. Yes. That is what I got
on the record.
Q. Then, don’t say sixty. A. But some of them,
I couldn’t find them.
Q. But you were asked how many you found.
A. All right.
143
Q. If you didn’t find them you don’t know if
they were there, except by hearsay. A. All right.
Q. So fifty is your answer? A. Yes.
By Mr. Silverstein:
Q. Will you give us the name and the street
address of the colored persons you found residing
within the Addisleigh section of St. Albans? A.
On Linden Boulevard, 174-----
The Court: Couldn’t we in the interest of ^gg
expedition have you bring in a list, put it in
the record, and have Mr. Newton concede
that he would so testify? Do I have to sit
and listen to fifty names and addresses ?
Mr. Newton: I will concede that he will so
testify.
The Court: You can put the list right into
the record.
Mr. Newton: Yes. That is, subject to my
objection to the testimony in general.
Mr. Silverstein: I offer for identification
this plate, which is similar to the one you of
fered with respect to the Addisleigh section
of St. Albans.
The Court: For identification or in evi
dence ?
Mr. Silverstein: No, just for identification
at the moment.
(Marked Defendant Rubin’s Exhibit C, for
identification.)
Q. Are the houses which your survey disclosed
were occupied by colored persons, as contained in
the record before you now—would they corres-
Beasley D. Kelly—For Defendant Rubin—Direct
144
pond to tlie houses which are shown in red, in
deep red, on Defendant’s Exhibit C, for identifi
cation? A. To the best of my ability they do.
Mr. Silverstein: I offer them in evidence.
Mr. Newton: May I ask a question of
counsel, your Honor?
The Court: Yes.
Mr. Newton: Do I understand that what
the witness is saying is that the area shaded
in red on this chart that you have before me
are the same areas as are in this list of prop
erty and that this is just a chart of what the
list itself shows?
Mr. Silverstein: Yes.
Mr. Newton: I have no objection, subject
to the same objection as related to the list.
Mr. Silverstein: May I offer it in evidence ?
Mr. Newton: All right, on the same basis.
(Map referred to, heretofore marked De
fendant Rubin’s Exhibit C, for identification,
received in evidence and marked Defendant
Rubin’s Exhibit C. List referred to received
in evidence and marked Defendant Rubin’s
Exhibit C-l.)
The Court: It is the understanding of
everybody involved that Defendant Rubin’s
Exhibit C-l is a list of houses in the Addis-
leigh section occupied by colored families, that
this witness would so testify, and that De
fendant Rubin’s Exhibit C, the chart, is a
drawing of the list, so to speak, showing the
same thing, and that the houses in red are the
houses occupied by the colored families set
forth in the list, and that this witness would
so testify.
“̂ 0 Beasley D. Kelly—For Defendant Rubin—Direct
145
a q qBeasley D. Kelly—For Defendant Rubin—Direct ‘±OD
By Mr. Newton:
Q. Mr. Kelly, there are on this map, Exhibit C,
eight houses which have been stricken out, since
they are not in the Addisleigh area as it has been
described here. Were those eight houses included
in the fifty that you mentioned a few moments
ago? A. Eight houses? Where are those houses
located?
Q. Here (indicating). A. No, they are not in
here.
Q. They are not in the list of fifty? A. Let us
see. Yes, they are.
Mr. Newton: May I ask that the witness
take his list of fifty and cross out those eight,
and also let the record show that the number
is 42 instead of 50?
By the Court:
Q. Is that right? A. These aren’t in there.
Q. You don’t understand the question. You said
before that there were fifty. A. Yes.
Q. Now, eight have been taken out by the law- 435
yer. Were those eight included in the fifty? A.
Yes, these were included in there, too.
Q. So now there would be only 42 left? A. Yes.
(Discussion off the record.)
The Court: You check this up overnight
and tell Mr. Newton the next time we get to
gether.
Mr. Silverstein: I should say that on this
list the names of those of the negro race are
checked off.
The Court: Here is a question I want to
146
AOCt
ask: Do the two blocks, the Lutz block and
the Kemp block, appear in this map marked
off in red?
Mr. Newton: Yes, they are Block Nos. 1314
and 1315.
The Court: According to my ability I see
three on the 1314 block and five on the 1315
block.
(Discussion off the record.)
437 The Court: With the consent of counsel
the Court has marked “ Lutz” opposite or
next to Lot 46 as showing the residence of
Lutz, the Kemp residence and the Rubin resi
dence already having been indicated on the
same map.
Mr. Newton: The Kemp residence, your
Honor, is Lots 1 and 4. It shows as only Lot
1 there.
Mr. Silverstein: I have no further ques
tions of the witness.
Mr. Newton: I have just one question.
By Mr. Newton:
Q. Do you know how many houses there are
in this Addisleigh section altogether? A. I do
not.
Q. In the section that you covered, how many
houses did you visit? A. I couldn’t tell exactly
how many, because I didn’t count them all, so many
people weren’t at home and I didn’t count.
° Beasley D. Kelly—For Defendant Rubin—Direct
147
H elen L evy, residing at 112-71-—175tli Place,
St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Rubin, being
first duly sworn, testified as follows:
Direct examination by Mr. Silver stein:
Q. How long have you lived on that street, Mrs.
Levy? A. Seventeen years.
Q. Are there any negro families living on your
block? A. Yes.
Q. How many are there?
Helen Levy—For Defendant Rubin—Direct
Mr. Newton: I object to it as immaterial.
The Court: I will take it.
Q. How many are there living on your block?
A. There is more than I know, because I have been
away all summer, and there have been some mov
ing in.
The Court: No. How many do you know?
The Witness: There are seven.
Q. Are they all on the same side of the street as
you are? A. No, some across the street.
The Court: Is she on either block, the Lutz
block or the Kemp block?
Mr. Silverstein: No. I can immediately
see an error on this. I see 112-71—175th
Place is marked off in red as colored. That is
Mrs, Levy’s address.
Q. There are seven whom you know? A. I
don’t know them, but I know they live in the
house.
148
442 Ferdinand W. Buermeyer—For Defendant Rubin
—Direct
Q. They live in houses on that block! A. On
either side.
The Court: But they have your house
marked as colored.
The Witness: No. The house next to me
is sold to colored, but the white people are
still in it.
The Court: You had better check your
. list between now and the next time we come
443 back.
Mr. Silverstein: The list is correct. This
is an error, that’s all.
Mr. Newton: No questions.
F erdinand W. B uerm eyer , residing at 299 West
12th Street, Borough of Manhattan, City of New
York, called as a witness in behalf of the defend
ant Rubin, being first duly sworn, testified as
follows:
444 Direct examination by Mr. Silverstein :
Q. Mr. Buermeyer, what is your business or
occupation! A. I am a stenographer and law
clerk.
Q. Have you as a law clerk made examinations
of titles and of records of the Register of Queens
County? A. I have.
Q. Over how many years ? A. Forty.
Q. Are you familiar with the Addisleigh sec
tion of St. Albans! A. Yes.
Q. Did you at my request make a survey of
that area? A. I did.
Q. More particularly did you make a survey of
149
the area with respect to the number of colored
families residing within the area known as Addis-
leigh? A. I did.
Q. Will you tell us from your survey approxi
mately how many colored families you found liv
ing in the area? A. Forty-eight.
Mr. Newton: I object to that as incompe
tent, irrelevant and immaterial.
The Witness: Pardon.
Mr. Newton: In the first place, I don’t
think I have made this entire thing clear to
the Court. I am objecting to all this line of
testimony on the ground that any change of
character of the neighborhood is not available
to this defendant Rubin as an original signa
tory to the agreement, and it is very plain
that the change of character, if there has been
any change of character, is something that
was clearly within the contemplation of the
parties when they made the agreement.
Therefore they cannot plead it now as a
defense. With respect to this particular con- 447
tract I submit that before the witness gives
his conclusions he ought to tell us what he
did.
The Court: I will sustain the objection to
it only on that last ground, but, otherwise I
will take the testimony. If this witness is
competent to testify, in other words, if he
made a proper inspection and investigation.
But as to your other objection, on the ground
that this defense is not available to this sig
natory, Mrs. Rubin, I can still take this testi
mony and pass on that later.
Mr. Newton: That is right.
Ferdinand W. Buermeyer—For Defendant Rubin
—Direct
150
The Court: But if I say later that it is
available to her and I have already excluded
the testimony, I am in a bad position.
By Mr. Silver stein:
Q. Tell us what you did, Mr. Buermeyer. A. I
went from house to house and made a canvass of
each house in that particular section and also the
surrounding territory, and I inquired in each
44» house as to whether there were colored people
living there or whether there were white people,
and from that-----
The Court: Did you make it clear that you
weren’t referring to help?
The Witness: I did, sir; as to whether they
were tenants or whether they owned the build
ing themselves, and in each particular case
where I found that there were colored people
living there, that is the ones that I reported
to you, sir.
Q. About how many houses did you find were
tenanted, occupied, or owned by persons of the
negro race?
Mr. Newton: In order to avoid the con
fusion that we had with the other witness,
may we have the area confined that he tested
in this way? We got into confusion with the
other witness.
The Court: Give us the boundaries of the
neighborhood you investigated.
The Witness: I went from Marne Avenue,
113th Place, along Sayres Avenue to 180th
Street, which backs up on the railroad, south
4 4 8 Ferdinand W. Buermeyer—For Defendant Rubin
—Direct
151
Ferdinand W. Buermeyer—For Defendant Rubin
—Direct
451
on 180th Street to Linden Boulevard, and then
back to the point of beginning.
Mr. Newton: That is a vastly greater area,
your Honor, than is included in this lawsuit,
vastly greater than has been described as
Addisleigh.
Mr. Silverstein: That is right.
The Witness: May I suggest here, when I
said there were 48, those are only the ones
that were included in what was here today, 452
from 112th Avenue.
By Mr. Silverstein:
Q. You haven’t told us the number yet. Con
fine yourself to 112th Avenue as the northerly
boundary line.
The Court: He is an old-time abstract man,
and title man.
The Witness: I was the head of the Law
Department in Queens Title for a great many
years. 453
By the Court:
Q. You looked at that map we have in evidence?
A. I didn’t see that map. I made a diagram of my
own.
Q. Look at the map, referring to Defendant’s
Exhibit C, and see if the neighborhood you
scoured or investigated was included in the lim
its of that map. A. They are included in that.
Q. How many houses did you find occupied by
negro families in that area? A. Forty-eight.
Mr. Newton: I object to that as immate
rial. Exception.
152
Q. Forty-eight? A. Yes.
The Court: Is there anything else?
By Mr. Silverstein:
Q. Do yon know approximately how many
houses there are in the defined area? A. Approx
imately I would say that there was about 325 or
330 houses in that particular area.
455 The Court: The ratio of colored is about
one to six and a half?
The Witness: I would say so.
Mr. Silverstein: That is all.
Mr. Newton: No questions.
The Court: We all understand when we
talk of ratio that we are talking of families,
not the component parts of families.
William E. Taube—For Defendant Rubin—
Direct
W illia m E. T aube, residing at 64 Wellington
Road, Darden City, Long Island, New York,
^ called as a witness in behalf of the defendant
0 Rubin, being first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Taube, what is your business or occupa
tion? A. Licensed real estate broker and ap
praiser.
Q. For how many years have you been such?
A. Over fifteen years.
Q. Where do you maintain your office? A. 161-
19—Jamaica Avenue, Jamaica.
Q. How long have you operated in that area?
A. About eight years there and the balance of it
in Long Island City.
153
Q. Are you familiar with the Addisleigh Park
section of St. Albans? A. I am.
Q. Did yon ever live near that neighborhood?
A. No, sir.
Q. Did you ever pass that neighborhood? A.
Twice a day.
Q. For how long? A. For about five years.
That is the way I come in from Garden City.
Q. Were you familiar with that section in 1939?
A. I knew it then, yes, sir. 458
Q. And prior to that date? A. Yes, sir.
Q. Do you know who owned the property which
is known as Addisleigh today, before it was built
on? A. Yes, sir.
Q. Who owned it? A. Edward Brown.
Q. Do you know who developed it? A. Edward
Brown, Hodman English, and a few developers
through him.
Q. Are you familiar with the type of neigh
borhood of Addisleigh in 1939? A. Yes, sir.
Q. Will you tell us what type of neighborhood
it was? A. Well, it was a high-class neighbor- 459
hood. There were good houses, some expensive
and some medium-priced. There was a large
golf course to the south—to the east, rather, of
Linden Boulevard, now converted into the Naval
Hospital.
Q. That is being operated by the United States
Government? A. United States Government.
Q. During the war and ever since? A. That’s
right.
Q. Going north to Linden Boulevard, were
there any colored families in the Addisleigh sec
tion of St. Albans prior to 1939? A. Not to my
knowledge.
William E. Taube—For Defendant Rubin— ‘
Direct
154
460 William E. Taube—For Defendant Rubin—
Direct
Q. Were there any in 1939? A. I wouldn’t
know the exact date that the influx came, but they
are there now.
Q. From 1939, going from 1939 up to the pres
ent date, has there been an influx in the Addis-
leigh section of St. Albans of colored families?
Mr. Newton: I object to that, if the Court
please, as a conclusion.
The Court: Yes. “ Influx” is a general
word, isn’t it?
Mr. Silverstein: Yes.
Q. Will you tell us, if you know from your own
knowledge and observation, what changes, if any,
have taken place in the section of Addisleigh with
respect to the occupancy of houses in that section?
Mr. Newton: I object to that, if the Court
please, as incompetent, irrelevant and imma
terial.
The Court: Yes. I would let him tell me,
if he knows, how many houses he knows in
the last five years or six years have been sold
or transferred or rented to colored people in
that part, the Addisleigh Park section, or the
Addisleigh, that were formerly inhabited or
tenanted by white people.
The Witness: I don’t know the exact num
ber, your Honor, but it was all white at one
time. It was built up for the white people,
and the neighborhood south of the Merrick
or west of the Merrick, rather, at that point,
and north of Sayres, or the Addisleigh sec
tion, has been gradually filling up with col
ored.
155
The Court: It can’t be filling up, because
it has been testified to that there are 325 to
330 houses and that only 48 are occupied by
colored.
The Witness: No; I said the section, not
the Addisleigh section.
The Court: We are only interested in the
Addisleigh section. I will strike that other
part out.
The Witness: - I don’t really know how
many there shall be. 464
By the Court:
Q. But you saw some there? A. Yes.
Q. You do know there are some colored? A.
Yes.
Q. Can you tell us what the situation was in
1939? Were there any in 1939, that is, colored?
A. There might be some in 1939.
Q. “ Might be” is not good testimony. A. No.
Q. Would you say there were none in 1939? A.
I wouldn’t say that.
Q. Would you say there are more now than 465
there were in 1939? A. Yes, sir.
Q. You couldn’t tell us how many there were in
1939? A. No.
By Mr. Silverstein:
Q. If you know, can you tell us whether or not
there have been sales of houses to persons of the
negro race in the Addisleigh section of St. Albans
prior to 1939? Do you know of any? A. I really
don’t.
The Court: Isn’t that really unnecessary?
You are preparing a list of all the houses oc-
William E. Taube—For Defendant Rubin—Direct 4 6 3
156
A O F ?
cupied by colored folk. You are going to get
the dates when the transfers were made.
Mr. Silverstein: That is right.
The Court: Let us assume he says there
weren’t and that ten of your transfers show
they were before 1939; what are you going to
do with that? And vice versa, let us assume
he says there were. You are going to have
the best evidence, aren’t you, on that point?
Mr. Silverstein: Yes, I think so.
Fred Williams—For Defendant Rubin—Direct
(An adjournment was taken to November
13, 1946, at 2 o’clock P. M.)
Jamaica, N. Y., November 13, 1946.
T rial Co n tinued
F red W illiam s , residing at 112-11 117th Street,
St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Eubin, being
408 first duly sworn, testified as follows:
Direct examination by Mr. Silverstein:
Q. Mr. Williams, where do you reside? A.
112-11 177th Street, St. Albans.
Q. Is that on the same street that Mr. Eubin
resides? A. That’s right, two doors from Mr.
Eubin.
Q. How long have you lived there? A. Four
years.
Q. Have you your family living with you there?
A. That’s right.
157
Q. Who was the house purchased from? A.
From Grillon, J. Grillon. I am quite sure there is
a “ J ” in the front.
Mr. Silverstein: I ask your Honor to take
notice of the fact that Grillon was one of the
signers of the covenant.
The Court: Is that right, Counselor?
Mr. Newton: That’s right.
The Court: When did he say he bought;
four years ago ?
Mr. Newton: He didn’t buy it. He has 470
not said that.
The Court: Oh, he said he has lived there
four years.
By Mr. Silverstein:
Q. In whose name is title? A. My wife’s.
Q. When did she purchase it? A. October 6,
1941, if-----1 am quite sure.
Q. You have lived there ever since the time you
purchased it? A. That’s right.
Q. Have you children? A. I have.
Q. They live with you? A. That’s right. 471
Mr. Silverstein: Will your Honor take
judicial notice of the fact that Mr. Williams
is a member of the negro race?
The .Court: I don’t think there is any argu
ment about that. Is there?
Mr. Newton: No, there is no question about
that.
Mr. Silverstein: That is all.
Mr. Newton: Is it conceded that Mrs. Wil
liams, the wife of the witness, is a white per
son?
Fred Williams—For Defendant Rubin—Direct 4 6 9
158
Mr. Silverstein: I don’t know about that.
You bad better cross-examine—yes.
Mr. Newton: And that sbe was tbe pur
chaser and is the owner of that property!
Mr. Silverstein: Yes.
Mr .Newton: That is all.
Andrew Reis—For Defendant Rubin—Direct
A ndrew R e is , residing at 112-40 177th Street,
^rjo St. Albans, Long Island, New York, called as a
witness in behalf of the defendant Rubin, being
first duly sworn, testified as follows:
Direct examination by Mr. Silverstein :
Q. Mr. Reis, what is your business or occupa
tion! A. Real estate broker.
Q. How long have you been in the real estate
business! A. Fifty-two years.
Q. Are you familiar with the section known as
Addisleigh! A. For the past twenty years.
Q. Do you know the approximate date when
474. the first colored family moved into the section
known as Addisleigh? A. The deed, I think, was
October, but they came in in December, 1940. The
number is 112-20, and the next is white, and then
the next is 112-10. They followed about two weeks
after. Those two houses were the first colored
folks in Addisleigh. That was December, 1940.
We came from Brooklyn and moved into Addis
leigh in October, 1940.
Q. To your knowledge, have colored families
been either acquiring by purchase or by lease
agreements living accommodations in Addisleigh
ever since that date?
159
Mr. Newton: I object to that, if the Court
please.
The Court: I will take it.
Mr. Newton: It is too general. I thought
that the understanding was that we were
going to have a specific statement of just what
families moved in and where and when.
Mr. Silver stein: We have that.
The Court: Is this the witness who is pre
pared to give the specific statements?
Mr. Silverstein: No; he is not here yet. 476
That is Mr. Kelly.
The Court: I will still take it.
A. I know of no lease holds, but I do know that
since that time there is between fifty and sixty
colored folks have moved into Addisleigh this side
of Linden Boulevard.
Q. When you say this side of Linden Boule
vard—— A. North.
Q. You mean north of Linden Boulevard? A.
That’s correct. I might also add that in the street,
176th, with those two families-----
• • /] T -TMr. Newton: Just a minute, there is no
question. I object to the volunteering.
The Court: Yes, there is no question.
Strike it out.
Q. Do you know the number of houses in the
two blocks in which Mr. Rubin and Mr. Lutz and
Mr. Kemp reside—how many houses are occupied
by persons of the colored race?
Mr. Newton: I object to that on the same
ground. We want some specific information,
not generalities.
Andrew Reis—For Defendant Rubin—Direct ^ l0
160
478 Andrew Reis—For Defendant Rubin—Direct
Mr. Silverstein: I am asking him if he
knows.
The Court: If he knows he can tell us.
Mr. Silverstein: If he doesn’t know, that
is all there is to it.
A. Yes, sir, I do know.
Q. You live in the same block that Mr. Rubin
lives on? A. That’s right.
Q. How many colored families live in that
block? Two.
Q. Did these colored families come in prior to
or subsequent to the execution and recording of
the covenant? A. Subsequent.
Q. Do you know how many colored families live
in the block that Mr. Lutz lives in? A. That is the
same block you are speaking of?
By the Court:
Q. There are two sides of the street, aren’t
there? A. Yes.
Q. Rubin is on one side with Kemp? A. That’s
right.
Q. Lutz is on the other side? A. That’s right.
Q. When you say two on that block, you mean
on both sides of the street? A. They are both on
Mr. Rubin’s side, sir.
Q. In other words, that is on Mr. Kemp’s ? A.
That’s right.
Q. There are two on the same side with Kemp
and Rubin and none on the other side? A. That’s
correct.
By Mr. Silverstein-.
Q. Are there any on the side Mr. Lutz lives on?
A. No, sir.
161
Andrew Reis—For Defendant Rubin—Direct 481
The Court: He just said no.
Q. Are there any in the block in which Mr.
Lutz is on? By “ blocks” I mean not necessarily
fronting on the same street, but fronting on an
other street within the same block.
The Court: You mean on the same square?
Mr. Silverstein: On the same square, yes.
A. Yes, Mr. Lutz, he backs up to about 5. That
is 176th Street.
Q. That would be 176th Street, that’s right.
And in the block you live in, in the square you live
in? A. That is the same square. I am on Lutz’s
side.
Q. And in the square that Mr. Rubin lives in?
A. Back of him are about four.
Q. Four colored families? A. That’s correct.
Q. Do you know the names of the families? A.
I do not, sir.
Q. Prior to occupancy by any member of the
colored race of any part of the section of Addis-
leigh what was the general character of the
neighborhood? A. Strictly white.
Q. Have you from your experience and knowl
edge of the area been able to form an opinion as
to whether or not there has been a change in the
neighborhood? A. A distinct——
Mr. Newton: I object to that, if the Court
please.
The Court: Sustained.
Mr. Silverstein: Does your Honor take
the position that that is a question for your
Honor to decide and he may not venture an
opinion ?
The Court: I think so.
162
Andrew Reis—For Defendant Rubin—Cross
Q. Do you know approximately how many
houses there are in the Addisleigh section of St.
Albans? A. What section?
Q. Addisleigh. A. Known as Addisleigh?
Q. Yes, north of Linden Boulevard. A. Oh,
north of Linden Boulevard?
Q. Yes. A. About 350.
Q. 350 residences? A. Correct.
Mr. Silverstein: That is all.
The Court: How many of those are col
ored?
The Witness: Your Honor, between fifty
and sixty.
Cross examination by Mr. Newton:
Q. Mr. Reis, you said that in the block back of
Mr. Kemp and Mr. Rubin, that is, facing 178th
Street, there are about four colored families; is
that right? A. There is—there is in that block
four.
Q. Which ones are they and where do they
live ? A. Sir ?
Q. Which ones are they and where do they
live? A. I can’t tell you offhand. I know they
are there.
Q. Is there any information here from which
you can tell us? A. There is information there,
but I can tell you that they are in the block.
Q. I said on the next street back of Kemp and
Rubin. That is what you answered, I think—
there were four. A. That’s right. ■
Q. What I want to know from you—and look
at anything you want to to refresh your recollec
tion—is how many there actually are.
163
The Court: Is there anything in this court
room that would help you remember how
many there are exactly, not about?
The Witness: Yes, I think so. I think the
paper is there (indicating).
The Court: Let the witness see the paper
he wants.
The Witness: (referring to paper): May
I peruse this, your Honor?
The Court: Yes.
The Witness: There are three backing up 488
to him.
Q. Which ones are they, please? A. 112-36,
112—
Q. Pardon me just a second. Who lives in 112-
36? A. I don’t know them, sir; all I know they
are colored people.
Q. Do you know whether the name is Kano or
not? A. I do not, sir.
Q. Then, you don’t know who it is? A. All I
know they are colored people. -08, -44, -36; that
is on the same square.
Q. -08 is McCauley? A. 112-08 is directly be- 489
hind Mr. Eubin’s house.
Q. That is McCauley, isn’t it? A. I don’t know.
I tell you, I don’t know their names.
Q. When you speak of the two families on 177th
Street you refer to Williams as one of them? A.
That’s correct.
Q. That is one of the two families you refer to ?
A. That’s correct.
Q. The other is Hemachandra? A. That’s cor
rect.
Q. Which are the five on 176th Street backing
Andrew Reis—For Defendant Rubin—Cross 4 8 7
164
490 Andrew Reis—For Defendant Rubin—Redirect
up towards Mr. Lutz? That would be on the east
side of 176th Street. A. That is 114-15-----
Q. Wait a minute. A. You see, that is the odd
number, I believe, on that side.
Mr. Silverstein: I don’t believe he has
176th Street in front of him.
The Witness: No. I have my own here—
I got it. 114-15.
Q. Wait a minute. A. That is the other side,
491 that is Murdoch. You don’t want them. That is
the square—pardon me, Counsellor, 112-36, 112-
42,-----
Q. Wait a minute, that is on the wrong side of
176th Street, isn’t it?
Mr. Silverstein: It is on the wrong side,
that’s right.
A. No, sir, that is the side on his square.
Q. I want the east side of 176th Street. Those
are the odd numbers, are they not? A. That is
the odd numbers. That is what I am giving you.
492 Q- You are giving me 36. That is an even
number. A. All right, I will give you 112-43.
Q. Yes. A. 112-23. That is all I got of the
odd numbers on my paper.
Mr. Newton: That is all.
Redirect examination by Mr. Silverstein:
Q. But there are four, sir?
Mr. Newton: I object to that.
The Court: Sustained.
Mr. Silverstein: Exception.
165
Andrew Reis—For Defendant Rubin—Redirect
By the Court:
Q. How many have you named as backing up on
Lutz? A. As backing up on bim? Five.
Q. You said five, but bow many could you
name? A. I could only give tbe two numbers.
Q. You don’t know the other numbers? A. I
didn’t put them down. I know them well. They
back up to my own home. I have 110 front foot
where I reside.
Q. You reside near Lutz? A. Just this side ,n ,
of him.
Q. The same block? A. Yes, sir.
Q. The same side of the street? A. Yes, sir,
Q. You know from your own knowledge that
there are five? A. Yes, your Honor.
Q. Backing up on you and Lutz? A. Yes, sir.
Q. There is no doubt in your mind? A. Not a
doubt. One of them is the professor-in-chief of
the New York University. That backs right up
to my property.
Q. Professor-in-chief of the New York Uni
versity? A. Of the New York University.
Q. What kind of title is that? A. I don’t know. ^95
I spoke to him. He told me he is the chief pro
fessor.
Q. Do you think modesty compelled him to say
that? A. I don’t know, your Honor.
By Mr. Silver stein:
Q. Do you know the Hemachandra family? A.
Yes, sir.
Q. Do you know the business or profession of
Mrs. Hemachandra?
166
496 Beasley D. Kelly—For Defendant Rubin—
Recalled, Direct
Mr. Newton: I object to that, if the Court
please.
The Court: Yes, sustained. There is no
question here as to whether they have reached
a certain social or professional or economic
stratum.
Q. Will this paper that I now show you refresh
your recollection as to the number of colored
^ families on the east side of 176th Street-----
Mr. Silverstein: I think I will withdraw
this witness. I have someone that I can defi
nitely establish the house numbers through.
The Court: You don’t want to ask him any
more questions ?
Mr. Silverstein: Oh, just one more ques
tion:
Q. Do you know in what part of Addisleigh
there exists the greatest concentration of colored
families 1
Ar.n Mr. Newton: I object to that, if the Court498 , J ’please.
The Court: Sustained.
Mr. Silverstein: That is all.
B easley D. K elly , reca lled .
By Mr. Silverstein-.
Q. Mr. Kelly, with respect to the section known
Addisleigh in St. Albans, did you at my request
make a house-to-house survey of the area? A.
I did, sir.
Q. In the course of your survey did you make
any records, notes, and memoranda to indicate
167
the number of families living on any one street?
Did you answer my question? Did you make any
notes and memoranda? A. I did make notes.
Q. Are the notes and memoranda that you now
have in your hands the records that you made in
the course of your survey? A. It is.
Q. Can you tell me how many colored families
there are on 177th Street between 112th Avenue
and 114th Avenue? A. On 177th Street between
112th Avenue and 114th Avenue? 500
Q. That’s right. A. I got two colored families.
Q. On which side of the street? A. On the east
side of the street.
Q. You have two? Have you any record show
ing how many there are on the west side of the
street? A. On 177th Street, I do not.
By the Court:
Q. Do you mean there are none, or that you
haven’t any record? A. I haven’t got any rec
ord.
Q. How is it that you have made a survey and 501
yet you haven’t a record?
Mr. Silverstein: That is correct. There
are none.
The Court: That is not what he is saying.
Q. You say you have no record or that there
are none? A. There are none. I haven’t any
record. There are none on 177th Street.
Q. You surveyed there? A. I did.
Q. There are none? A. Yes.
Q. You should not say you haven’t any record;
you should say there are none. A. All right.
Beasley D. Kelly—For Defendant Rubin— * * y y
Recalled, Direct
168
502 Beasley D. Kelly—For Defendant Rubin—
Recalled, Direct
By Mr. Silver stein-.
Q. Going to 176th Street north of 114th Avenue,
have you any record of how many colored families
there are on the east side of the street? A. On
the east side of 176th Street I have a record of
four colored families.
Q. Four colored families? A. That’s right.
Q. Are there any colored families on the west
side of 176th Street?
Mr. Newton: I object to that as imma
terial, if the Court please. That is outside
of the restricted area under these covenants.
The Court: Is it conceded that this is out
side the restricted area?
Mr. Silverstein: It is outside of the two
blocks referred to in the covenant.
The Court: I think I ought to take it sub
ject to connection, because I remember some
thing about a question of whether or not the
other numbers were supposed to be included
or not. I think I held that they could not
vary the agreement by the evidence they tried
to introduce, but this case has had an inter
lude now of about six or seven days, and I
think I will take it subject to connection. If
it is not connected I will strike it out.
Mr. Silverstein: If I may refresh your
Honor’s recollection, I brought out on cross-
examination through Mr. Lutz that it was
part of the common plan and scheme for the
neighborhood, and I confronted him with his
affidavit that was used in support of the ap
plication for a temporary injunction in
which-----
169
The Court: I think he admitted that they
intend to ask the other owners in the vicinity
to join this plan. Of course, I am not ready
to hold now that because the others didn’t
join, that this is not a good agreement. I
am talking about the legality of it. In other-
words, if it is a good agreement from other
considerations, it could be good if others did
not join it.
By Mr. Silver stein-.
Q. (Last question read.)
Mr. Newton: May I say this, your Honor,
that so far as this particular objection is con
cerned, we had some testimony in the last
hearing in this case concerning the number
who have moved into the whole Addisleigh
area. I didn’t object to that. I think that
it is immaterial now to break it down and
try to draw conclusions with respect to par
ticular blocks on any theory of a common
plan or scheme. If your Honor is taking it
on the question of whether there has been a
change of character in the neighborhood,
which is what we discussed at the last trial,
it seems to me that the best evidence is the
evidence that we all agreed at the last trial
would be received, and that is a statement
showing the families that had moved into the
Addisleigh section and where.
Mr. Silverstein: I have that statement.
The Court: Why don’t you get to it? We
agreed last time that you were going to get
me a list of the changes and when they were
Beasley D. Kelly—For Defendant Rubin—
Recalled, Direct
505
506
507
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made, that is, whether they were made sub
sequent to the signing of these restrictions or
prior to it.
Mr. Silverstein: I have such a list, but
before I could put Mr. Schuh on to testify
as to the date of each conveyance I thought
I would have to show that, because Mr. Schuh
wouldn’t know from an examination of the
record whether or not they were people of
the white race or colored race. I would have
to show the number of people living in that
block who are persons of the colored race.
The Court: Are you still objecting? Can
you help this by concession?
Mr. Silverstein: Unless there is a conces
sion that the names of persons on this list are
persons of the colored race-----
Mr. Newton: There was testimony of two
witnesses before that they had gone over this
area and that these people were people of the
colored race. I was supposed to receive a
copy of this a short time after the last hear
ing, so that we might make a check. I re
ceived it as I came into court today.
Mr. Silverstein: We only completed it last
night.
Mr. Newton: I assumed it was going to be
offered. I will say right now that I was
going to make the statement, when it was
offered—I am asking the Court to take it
subject to an opportunity to us to check it
up and to call attention to any errors that
we may find in it.
The Court: All right, we will take it on
that basis. I think that is a fair request.
171
Colloquy 511
Take it out and test check it. If we are
through with everything else I will close the
case, and if there are any errors, serious
errors, call them to my attention and I will
reopen the case.
Mr. Silverstein: May I make this memo
randum on the original of it and conform his
copy? We will by brackets indicate those
houses which are within the area described
in the covenants by brackets. All the rest will
be houses in Addisleigh, but not within the 512
two blocks referred to in your bill.
Mr. Newton: That part is all right. There
are also on this statement three houses on
the north side of 112th Avenue which are not
in our area at all, as I read it. They are at
174-15, 174-19, 174-27.
(Discussion off the record.)
Mr. Silverstein: Then, will we stipulate
that this is Mr. Kelly’s list?
Mr. Newton: Yes.
Mr. Silverstein: And that it may be of-
fered in evidence? °
Mr. Newton: Yes. I object merely on the
question of immateriality with respect to the
properties outside of the restricted area.
Mr. Silverstein: Before it is marked in
evidence I want to bracket those houses in the
two blocks and put letters down.
(Received in evidence and marked Defend
ant Rubin’s Exhibit D.)
The Court: Do I understand that the
bracketed houses are the ones that appear in
the blocks covered by the restrictions ?
172
Mr. Silverstein: That is right.
Mr. Newton: That is right, Judge.
The Court: How could there be three
blocks?
Mr. Newton: The first group of four are
the ones back of Lutz, and the next group of
two are-----
The 'Court: May I make a mark on them
for my own use?
Mr. Silverstein: Yes, surely.
515 Mr. Newton: And the next group of two
include the Williams, which is owned by a
white woman. That is on 177th Street.
The Court: That is on 177th Street, 112-11
and 112-39.
Mr. Newton: That is right. Those are on
Rubin’s block, or as long as we are using the
plaintiff’s name, on Kemp’s block.
The Court: That’s right, and which one
is-----
Mr. Newton: Williams, that is 112-11.
The Court: The next two on 178th Street?
-j-g Mr. Newton: That’s right, your Honor.
The Court: What are those?
Mr. Newton: That O’Malley, you see, is
occupied by a white person, so there is one
colored family living on that street.
The Court: I don’t follow you. You have
four—112-19, -23, -27, and -43. Those are all
occupied by colored families and are in back
of Lutz?
Mr. Newton: That’s right.
The Court: The next two are on the block
of Kemp, and 112-11 is occupied by Williams?
0±* Colloquy
173
Mr. Newton: That’s right.
The Court: Mrs. Williams is white and
Mr. Williams is colored?
Mr. Newton: That is right, and she owns
the property.
The Court: 112-39 is colored?
Mr. Newton: That’s right.
The Court: On 178th Street you have 112-
OS and 112-14. Where are those two?
Mr. Newton: They are back of Kemp and
Rubin ? 518
The Court: Back of Kemp?
Mr. Newton: Yes.
Mr. Silverstein: The same square.
The Court: And they are both——
Mr. Newton: And 112-14 is occupied by
white people.
The Court: Why have you got them both
bracketed?
Mr. Kemp: Because they claim it is owned
by a colored family. I don’t know but it is
occupied by a white family.
The Court: It is occupied by white and
owned by colored?
Mr. Newton: They claim it is owned by
colored. I don’t know.
The Court: In that list you gave me is it
ownership or occupancy, or which?
Mr. Silverstein: Both.
The Court: In other words, where you
have an occupancy and not an ownership and
you have included it as colored-----
Mr. Silverstein: I showed it by a symbol.
If there was an occupancy by a colored tenant
then I showed it by the symbol “ B ” . If he
Colloquy o x '
174
was a colored owner and lie was not the ten
ant, I showed the colored owner by the symbol
“ B ”, and if he was a white tenant, by the
symbol “ C” . Otherwise they are all colored.
The Court: All right, I have it now.
Mr. Silver stein: The explanation of the
symbols is down below at the bottom of the
list. If you look under the heading, “ Ten
ant”, all of them are occupants, either as
owners or tenants, and they are all colored
521 except I think I see one letter “ C” , and that
is O’Malley.
The Court: Teller is the owner, colored,
and O’Malley is the white owner?
Mr. Silverstein: That is right.
The Court: Here you have back of Lutz,
back of Kemp’s block. We have none on the
Lutz block.
Mr. Silverstein: The Lutz side we have
four, that’s right, back of Lutz.
The Court: Are you through ?
Mr. Silverstein: Yes, except that in con-
g99 nection with the testimony-----
The Court: Are you through with the
witness ?
Mr. Silverstein: Yes.
Mr. Newton: No questions, your Honor.
Colloquy
Mr. Silverstein: I just want to call your
Honor’s attention to the fact that in the
agreement for restrictive covenant which
plaintiff has in evidence there is the language,
the second “ Whereas” clause, “ Whereas the
parties hereto desire for their mutual benefit
Colloquy
as well as for the best interests of the com
munity and the neighborhood, to improve and
further the interests of said community”-—
I call it to your Honor’s attention solely by
reason of the fact that the objection is raised
as to any evidence with respect to colored
ownership or occupancy outside of the two
blocks mentioned in the covenants in evidence,
as an indication that there was this contem
plated general scheme or plan.
Have you the minutes?
Mr. Newton: Yes, I have.
The Court: The minutes of what?
Mr. Silverstein: Of the Addisleigh Park
Association.
Mr. Newton: If your Honor please, coun
sel has asked to see the minutes of the Addis
leigh Property Owners Association. I have
here the minutes. They have been produced
pursuant to a subpoena. There were no meet
ings held in the years 1936, 1937, 1938, 1939,
and 1910, and there are no minutes for any of
that period. Counsel has asked to see the
minutes subsequent to that. I claim they are
entirely immaterial in this case.
The Court: When were these agreements
signed ?
Mr. Newton: 1939.
Mr. Silverstein: Am I not entitled to see
any evidence which may shed light on the
question of the common scheme and plan?
Mr. Newton: That existed in 1939 if it
ever existed, not since.
Mr. Silverstein: I realize that I can’t offer
parole evidence to vary what amounts to a
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grant. One of the exceptions to the parole
evidence rule is that conditional delivery may
be shown, but the exception to that rule is
that it may not be shown where it affects an
interest in real property.
Mr. Newton: Go ahead and look at it. I
am not going to object to your looking at it
(handing papers to Mr. Silverstein).
Mr. Silverstein: I want to offer in evi
dence the minutes of a meeting of the Addis-
leigh Property Owners Association that took
place on April 7, 1941. I might add, while
counsel is looking at them, that he has a rec
ord in there that there were no meetings be
tween 1936 and 1940. I subpoenaed the at
torney for the Association who prepared the
instruments, the covenants, and who attended
the meetings. He has not appeared, despite
my requests that he do so appear to testify.
Mr. Newton: If the Court please, I object
to that as incompetent, irrelevant and imma
terial. They are minutes of a meeting after
the present covenants were made and after
they had been recorded, and it has to do with
some other arrangements that were made
there. I can’t see that it has any bearing
whatever on the issues in this case.
Mr. Silverstein: May I be heard on it?
The Court: Yes.
Mr. Silverstein: If your Honor recalls,
during the course of the trial I offered in evi
dence photostatic copies of covenants con-
cededly not affecting these blocks but con
taining the escape clause referred to in there,
and it is through Mr. Schaefer, who was ac-
177
live in the Association, who has not appeared
despite subpoena, that I can establish by a
series of correspondence, copies of which I
have, that these covenants offered by us were
to be submitted to the people on both sides,
within the two squares, on 176th and 177th
and 179th Streets, and that they were to be
given the opportunity to have their names
eradicated from the covenant if they affixed
their names to the new covenant. I have
copies of such correspondence, which Mr. 530
Schaefer could testify to, letters written to
him by co-counsel of the Association. Those
letters are in his file.
I say he has been subpoenaed. He just re
fuses to come here. He has told me time and
again that he doesn’t want to get himself in
the middle of the situation. He asked me to
adjourn this case until after Election Day,
because he was managing Mr. Barry’s cam
paign, and when Mr. Barry passed away he
managed Mrs. Barry’s campaign. He has
been advised of every adjournment and has
consistently failed to appear.
The Court: I assume you are making a
statement why these minutes should be ad
mitted and you end up with a sort of tirade
against Mr. Schaefer, the manager of an un
successful campaign. Now, I don’t know. Is
that obiter dicta?
Mr. Silverstein: No. I say that through
him I could establish-----
The Court: If you are making an applica
tion to the Court to produce a witness, that
is one thing. Right now the business before
Colloquy
178
the Court, as I understand it, is as follows:
You have offered in evidence two certain
typewritten pages which purport to be the
minutes of a meeting of the Addisleigh Prop
erty Owners Association, Inc. at the St.
Albans Golf 'Club on April 7, 1941.
Mr. Silverstein: That is right.
The Court: They have been objected to.
You asked to be heard on it before I ruled.
Mr. Silverstein: Yes.
533 The Court: Where are you now?
Mr. Silverstein: What I attempted to con
vey to the Court was this-----
The Court: Don’t go over it again. I
heard everything you said. Are you still on
the question?
Mr. Silverstein: Yes, on the question.
The Court: Are you through?
Mr. Silverstein: That I could connect that
with the covenant through Mr. Schaefer.
The Court: I don’t know what you could
do in the future, and I am not ready to rule
534 in futuro. At this moment I will sustain
the objection and keep out these minutes for
the following reasons: We are concerned
here with two covenants, Plaintiffs’ Exhibits
4 and 5, both of which are dated some time
in 1939 and recorded in 1940; is that correct?
Mr. Silverstein: That’s right.
Mr. Newton: Dated January 10, 1939, re
corded January 2, 1940.
The Court: Both?
Mr. Newton: Both.
The Court: As I say, we are concerned
with those covenants, actual signed agree
ments, actually recorded, referring to certain
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179
people who are signatories to those covenants.
In order to attack those covenants you offer
two typewritten sheets of paper headed by,
or rather, headed up, as I have said, ‘ ‘ Meeting
of the Addisleigh Property Owners Associa
tion, Inc.,” and signed in parenthesis—I am
reading from the paper—“ George J. Eodius,
Jr .,” a typewritten signature. It does not
say who was present at this meeting, it does
not say who had a right to bind whom, it
does not show any authority on anybody’s 536
part; it shows that a discussion took place
without any previous connection in these so-
called minutes. It says, “ The revised lan
guage of the covenant reads as follows:”
It does not talk about which covenants, it
does not tell us which covenants they are
talking about. We don’t know if this re
lates to the group or the location covered by
the recorded covenants, Plaintiffs’ Exhibits
4 and 5. It is much too indefinite. There
is no authentication of these minutes. I think
that if we let these in we might as well let 507
in the opinion, the thought, and the street
corner discussion of everybody in the neigh
borhood. I think you would be going a little
too far afield. I therefore sustain the objec
tion to admitting it into evidence, with proper
exceptions to you.
Mr. Silverstein: As I started to say to
your Honor, the only other witness I would
have submitted would have been Mr. Schae
fer. He has not appeared.
The Court: Let us dispose of that. If you
are willing to rest without Mr. Schaefer’s
Colloquy 000
Motion to Dismiss Renewed
testimony, that is your affair, your judgment.
1 am sure that you will use your best judg
ment in behalf of your client. If you want me
to give consideration to any testimony that
he may possibly affirm or deny, on the theory
that you have subpoenaed him and he is not
here, I cannot do that. Do you want to apply
to the Court to bring him in by mandate of
the Court, after showing to this Court prop
erly served subpoenas and the failure of the
witness to obey them? I shall then consider
your application.
Mr. Silverstein: The defendant Rubin
rests.
Mr. Newton: Your Honor, will the Court
take judicial notice of the official reports of
the proceedings of the Constitutional Con
vention of 1938 and the proceedings with
reference to amendments, and the proceedings
of the Legislature since that date? If you
will, then it will not be necessary for me to
bring those many volumes in and encumber
the record with them.
The Court: lo u have no objection to my
taking judicial notice of that?
Mr. Silverstein: No.
Mr. Newton: The plaintiff rests, your
Honor.
Mr. Silverstein: The defendant Rubin re
news its motion to dismiss the complaint.
The Court: I shall reserve decision. Any
decisions made on these motions will be with
appropriate exceptions.
Is this procedure agreeable to both of you
gentlemen—and in addressing the attorney
Motion to Dismiss Renewed
for Rubin I assume he will be able to speak
for the attorney for Richardson in this mat
ter—a number of items of evidence have been
admitted subject to a motion to strike out, and
as always happens in a case of this type,
which is prolonged and protracted over a pe
riod of time, even though not being presented
all the time, everybody forgets about these
motions.
Mr. Newton: May I speak on that subject
while you are right there?
The Court: I was going to make a sugges
tion, and you might not have to speak. See
if it is agreeable to you. I will assume that
all these motions were pressed again at the
conclusion of the trial. If I find any evidence
that in my opinion has not been properly con
nected, or if I find that no further evidence
was given on such a point, I will strike it out
if I deem that it has not been connected, with
an appropriate exception to the party ad
versely affected. Is that agreeable?
Mr. Newton: That takes care of it.
Mr. Silverstein: Yes.
182
Plaintiffs’ Exhibits
(Omitted pursuant to Order Settling Case herein
printed at pages 191-2)
1. Photograph of home of Harold F. Kemp,
one of the plaintiff-respondents.
2. A, 2-B, 2-C and 2-D. Photographs of the
two houses to the north of Harold F. Kemp on
the same side of the street and of the remaining
houses within the block between 112th Avenue and
■ ** 114th Avenue in St. Albans, New York.
3. Tax map of the City of New York showing
the location of the premises in issue.
4. Agreement of restrictive covenant dated
January 10, 1939 signed by Harold F. Kemp,
Sarah M. Kemp and Sophie Rubin.
5. Agreement of restrictive covenant dated
January 10,1939 affecting the side of 177th Street
wherein John H. Lutz and Irene Lutz reside.
546
6. A, 6-B and 6-C. Photographs of houses on
side of 177th Street wherein John H. Lutz and
Irene Lutz reside.
7. Photog-raph of 177th Street looking north
from 114th Avenue toward 112th Avenue, St.
Albans, New York.
8. Sketch upon which certain lots are shaded
in red, representing those lots covered by the
agreements of restrictive covenant.
183
D efendant Rubin’s Exhibits
(Omitted pursuant to Order Settling Case herein
printed at pages 191-2)
A. For Identification—Certified copy of writ
ing dated July 26, 1943 recorded in Office of the
Register of Queens County, August 26, 1943 in
Liber 4734 of Conveyances, page 467.
B. For Identification—Writing dated June 2,
1941, recorded January 10, 1942 in Office of the
Register of Queens County, January 10, 1942 in
Liber 4513 of Deeds, page 293.
!C. Map of Addisleigh section of St. Albans
containing certain portions shaded in red repre
senting houses occupied by colored persons.
C. l List with addresses of colored families re
siding in Addisleigh section of St. Albans, New
York.
D. List of colored residents in Addisleigh area
of St. Albans, New York with addresses.
547
549
184
550
Opinion by Mr, Justice Livingston
In 1939 eighteen owners of real property on
One Hundred and Seventy-seventh Street between
One Hundred and Twelfth and One Hundred and
Fourteenth Avenues, in the Addisleig'h section of
St. Albans, Queens County, executed a restrictive
covenant reciting “ that no part of the land now
owned by the parties hereto * * * shall ever be
used or occupied, or sold, conveyed, leased, rented
or given, to Negroes or any person or persons
551 °f the Negro race or blood or descent.” The
agreement also provides that the covenant is to
run with the land and is to bind the parties, their
heirs, successors and assigns until December 31,
1975. Plaintiffs, who are two of the signers of
the agreement, sue to enjoin a third, the de
fendant Sophie Rubin, from conveying her prop
erty to a Negro, the defendant Samuel Richard
son, and to enjoin the latter from purchasing or
occupying such property. The answers admit that
defendants entered into a contract of sale
and that the defendant Richardson is of the
552 -^eSro race. In addition to denying that plain
tiffs will sustain irreparable and great pecuniary
loss if the proposed conveyance is consummated,
defendants plead ten affirmative defenses. Prefa
tory to a consideration of the issues presented,
the court wishes to express its deep gratitude to
counsel for plaintiffs, defendants and the various
organizations which have intervened in this ac
tion as amicus curiae, for their able and enlighten
ing arguments and for their very scholarly briefs.
Also by way of prelude, the court wishes to state
that it is in accord with the views expressed
by Mr. Justice Murphy in Hirabayashi v. United
185
States (320 U. S., 81) to the effect that: “ Dis
tinctions based on color and ancestry are utterly
inconsistent with our traditions and ideals. They
are at variance with the principles for which we
are now waging war. We cannot close our eyes
to the fact that for centuries the Old World has
been torn by racial and religious conflicts and has
suffered the worst kind of anguish because of
inequality of treatment for different groups.
There was one law for one and a different law
for another. Nothing is written more firmly into 554
our law than the compact of the Plymouth voyag
ers to have just and equal laws.”
At the same time, however, and regardless of
what its sentiments may be, this court is con
strained to follow precedent and govern itself in
accordance with what it considers to be the pre
vailing law.
Defendants’ main contentions are that judicial
enforcement of the racial restrictive agreement
involved is prohibited by the Fourteenth Amend
ment of the Constitution of the United States and
that the same is contrary to the public policy of 555
the State of New York and of the United States.
Similar restrictive covenants, however, have con
sistently been held to be valid and enforcible in
equity by way of injunction by both the Supreme
Court of the United States and our state and
federal courts. The first holding by the Supreme
Court of the United States to this effect was
Corrigan v. Buckley (271 U. S. 323). There the
court affirmed a decree enjoining the defendant
Corrigan from selling a lot in Washington, D. C.,
to the defendant Curtis in violation of an inden
ture entered into by Buckley, Corrigan and
Opinion by Mr. Justice Livingston 0 0 , 5
186
another, whereby they mutually covenanted and
bound themselves, their heirs and assigns for
twenty-one years, not to sell to any person of the
Negro race or blood. Significantly, in the Cor
rigan case, it was also urged that so long as it was
beyond legislative power to enact a statutory
restriction similar to the covenant involved there
(Buchanan v. Warley, 245 U. S. 60), it was in
conceivable that a court of equity would judicially
compel observance of such a covenant. The Su-
557 preme Court brushed aside this contention and
specifically stated that the prohibition of the
Fourteenth Amendment had reference to state
action exclusively and not to any action by private
individuals. The court stated, at page 330: “ And
the prohibitions of the Fourteenth Amendment
‘have reference to state action exclusively, and
not to any action of private individuals’ (Virginia
v. Rives, 100 U. S. 313, 318; United States v.
Harris, 106 U. S. 629, 639). ‘It is State action
of a particular character that is prohibited. In
dividual invasion of individual rights is not the
553 subject matter of the amendment’ (Civil Rights
Cases, 109 U. S., 3, 11). It is obvious that none
of these Amendments prohibited private individ
uals from entering into contracts respecting the
control and disposition of their own property;
and there is no color whatever for the contention
that they rendered the indenture void.”
In the intervening twenty years subsequent to
the decision in Corrigan v. Buckley (supra), the
same question has arisen in a considerable num
ber of cases and the same conclusion has been
reached by the courts (see Russell v. Wallace, 30
Fed. [2], 981 [cert, denied 279 U. S. 871]; Cornish
0 0 0 Opinion by Mr. Justice Livingston
187
v. O’Donoghue, 30 Fed. [2d], 983 [cert, denied
279 U. S. 871]; Grady v. Garland, 89 Fed. [2d],
817 [cert, denied 302 TJ. S. 694]; Mays v. Burgess,
147 Fed. [2d], 869 [cert, denied 325 U. S. 868];
Ridgway v. Cockburn, 163 Misc. 511; Bury v.
Neely, N. Y. L. J., April 28,1942, p. 1796, Cuff, J.).
Counsel for the defendants also urge that sec
tion 11, article 1, of the Constitution of the State
of New York now prohibits the use of such cove
nants. Section 11 reads: “ No person shall be
denied the equal protection of the laws of this 560
state or any subdivision thereof. No person shall,
because of race, color, creed or religion, be sub
jected to any discrimination in his civil rights by
any other person or by any firm, corporation or
institution, or by the state or any agency or sub
division of the state.” In seeking the answer
to this question, we must examine the origin and
background of the new provision of the Consti
tution to determine the intention of its framers.
Except for the first sentence which embodies in
part Article XIY of the Federal Constitution, sec
tion 11 is the compromised result of ten separate 552
and original proposals (page 810, Volume 2, Re
vised Record of the New York State Constitu
tional Convention) differing in length and scope,
with varying degrees of particularity. The pro
posal which was finally passed is general in form
and does not include any language which spe
cifically condemns restrictive covenants. This
omission seems significant when considered in the
light of the discussion which attended the passing
of the amendment. In the debates which pre
ceded the adoption of the amendment (pages 2626
and 2627 of Volume 4, Revised Record of the New
Opinion by Mr. Justice Livingston
188
York State Constitutional Convention) it was
stated that the civil rights concerning which the
amendment was designed to afford protection
were only those “ which appertain to a person by
virtue of his citizenship in a state or a commun
ity,” and “ which are found in the Constitution,
in the Civil Rights Law and in the statutes.” In
other words, no new civil rights were intended to
be created by the constitutional amendment and
it was merely permissive in character. This in-
563 terpretation is reinforced by the statement of the
bill of rights committee (page 1144, Volume 2,
of the Revised Record, &e.) which reads: “ * * *
it is implicit in the Constitution that any * * *
enactment such as this, in order to be effective,
must be carried out in some form by legislative
enactment * * It is significant to note that
several such statutory amendments prohibiting
restrictive covenants were introduced in the Leg
islature subsequent to the constitutional conven
tion, but were not adopted.
In fact, a bill has been introduced at the present
564 session of the Legislature (Introductory Bill No.
71) to amend the Civil Rights Law as follows:
“ Section 46. Purchase and lease of real prop
erty. The opportunity to purchase and to lease
real property without discrimination because of
race, creed, color or national origin is hereby
recognized as and declared to be a civil right.”
It seems clear, therefore, that we do not have
on our statute books any specific provisions which
outlaws racial restrictive covenants. In the cir
cumstances, this court does not feel that it should
judicially legislate by reading into the statutes
something which the Legislature itself has failed
0 0 - 1 Opinion by Mr. Justice Livingston
Opinion by Mr. Justice Livingston 565
to adopt. What was said by the Court of Appeals
in the Matter of O’Brien v. Tremaine (285 N. Y.
233, 238) is particularly pertinent: “ The policy
which dictated the enactment of a statute which
both defines and limits the rights which the ap
pellant now asserts, is a matter solely for the
Legislature. No power is granted to the courts by
interpretation to vary the clear and positive man
date of the statute. Mindful of our duty to con
strue that statute liberally, we must not be un
mindful of the rule that ‘freedom to construe is 566
not freedom to amend.’ ”
Defendants’ further contention that the cove
nant in the present case constitutes an undue and
unlawful restraint upon alienation is also un
tenable. The true test to determine whether a re
strictive covenant is void as a restraint upon
alienation is whether it restrains all alienation
(Patter v. Couch, 141 U. S. 296, 315). Applying
that rule to the facts here, we find that the de
fendant owner has been free at all times to sell
her property to all persons except to those of a
particular race, for a limited period of time. 557
Such a covenant has been held not to be an un
lawful restraint upon alienation (Hundley v. Gore-
witz, 132 Fed., 2, 23; Cornish v. O’Donoghue,
supra; Corrigan v. Buckley, supra).
Defendants also stress the defenses that there
was a conditional delivery of the covenant by the
defendant Rubin, that plaintiffs have been guilty
of laches and have waived the benefits of the
restrictive covenant; also, that the character of
the neighborhood has changed to such an extent
that to grant injunctive relief would impose a
great hardship upon them. These defenses have
568 Opinion by Mr. Justice Livingston
not been substantiated by the evidence adduced at
the trial.
The evidence shows that plaintiffs have not vio
lated tbe covenant themselves nor have they con
sented to or authorized its violation by others.
Even if there were violations, plaintiffs could dis
regard those that were not in close proximity to
them and could proceed against the ones which
were particularly offensive. Under the circum
stances there was no waiver or laches on their
569 part (Rowland v. Miller, 139 N. Y. 93).
The proof also discloses that the present cove
nant was executed by the plaintiffs and the de
fendant Rubin but seven years ago, and there are
only two houses in the area restricted by the
covenant which are occupied by Negroes: one
which was not covered by the restriction and the
other by a white woman who is married to a
Negro. It thus appears that the character of the
neighborhood has not changed to any great extent.
Moreover, the covenant was executed to protect
the restricted property and not the property sur-
570 rounding it (Grady v. Garland, supra).
Defendants’ remaining contention that the en
forcement of the covenant is forbidden by existing
treaties to which the United States is a signatory
is without force. These treaties have nothing to
do with domestic matters nor with agreements be
tween citizens of the United States. In fact, Ar
ticle 2, Section 7, of the United Nations Charter
expressly so provides.
Judgment is, therefore, granted to plaintiffs for
the relief demanded in the complaint. Submit
judgment accordingly on notice.
191
Order Settling Case
At a Special Term, Part I thereof, of
the Supreme Court of the State of
New York, held in and for the County
of Queens, at the Queens County
General Courthouse, 88-13 Sutphin
Blvd., Jamaica, N. Y., on the 25th
day of June, 1947.
P r e s e n t :
H o n . J acob H. L ivingston , 572
Justice.
571
- ----------------- +-------------------
H abold P . K em p , S abah M. K e m p , J o h n H . L utz
a n d I ben e L utz , on b e h a lf o f th em se lv es a n d
a ll o th e rs eq u a lly in te re s te d ,
Plaintiffs,
against
S o ph ie R u b in a n d S am uel R ichabdson,
Defendants.
--------------------- f-------------------- -
The Case on Appeal in the within action having
been duly submitted to me for settlement on June
12, 1947, together with the proposed amendments
thereto, and having heard Andrew D. Weinberger,
by Wertner W. Tandy, Jr., attorney for defend
ant-appellant Samuel Richardson; Wait, Wilson &
Newton, by William F. Campbell, attorney for
plaintiff-respondent; and Paul R. Silverstein, by
Irving Schuh, attorney for defendant-appellant
Sophie Rubin, and due deliberation having been
had thereon, it is
192
Order Settling Case
O rdered, that in the seventh paragraph of
“ Statement Under Rule 234”, the words “ the per
sons intended being Samuel Richardson and his
wife” are stricken; and it is further
Ordered, th a t th e o th e r p ro p o se d am en d m en ts
to th e sev en th a n d e ig h th p a r a g ra p h s o f th e s ta te
m en t a re d is a llo w e d ; an d i t is f u r th e r
Ordered, that the exhibits shall not be included
in the record on appeal but shall be handed up to
575 the Appellate Division at the time the appeal is
argued or submitted, provided, however, that the
exhibits shall be described in the record on appeal
so that they may be readily identified.
There being no opposition by appellants to the
remainder of the proposed amendments, they are,
therefore, allowed.
Enter,
Granted June 25, 1947
576
Paul Livoti, Clerk
J. H. L.
J. S. C.
193
Stipulation W aiving Certification
It is hereby stipulated pursuant to Section 170
of the Civil Practice Act that the foregoing are
true and correct copies of the Notices of Appeal,
the Judgment Appealed From, the Opinion of
the Court, the ease on appeal as settled, and the
whole thereof, now on file in the office of the Clerk
of the County of Queens, and certification thereof
by the Clerk of said Court pursuant to Section 616
of the Civil Practice Act is hereby waived.
Dated, July , 1947. 578
A ndrew D. W einberger ,
Attorney for Defendant-Appellant
Samuel Richardson.
P aul R. S ilv erstein ,
Attorney for Defendant-Appellant
Sophie Rubin.
W ait W ilson & N ew ton ,
Attorneys for Plaintiffs-Respondents.
_____ 579
Order Filing Record in Appellate D ivision
Pursuant to Section 616 of the Civil Practice
Act it is hereby ordered that the foregoing printed
record be filed in the office of the Clerk of the
Appellate Division of the Supreme Court, Second
Judicial Department.
Dated, July , 1947.
J acob H. L ivingston ,
J. 8. C.
577