The New York Supplement

(195 N.Y.S.)

and that case was followed in Bates v. Logeling, 137 App. Div. 578, 122 N. Y. Supp. 251.

[2, 3] In interpreting restrictive covenants, the intention of the parties should be carried out, if that is possible. Clark v. Devoe, 124 N. Y. 120, 26 N. E. 275, 21 Am. St. Rep. 652; Kitching v. Brown, 180 N. Y. 427, 73 N. E. 241, 70 L. R. A. 742. Following these authorities, I am of the opinion that the learned referee has overlooked the intention of the parties when they made the modification agreement of December 14, 1916. He has held to the rule of excluding all uses of this property which are not strictly for residence purposes, whereas I believe it was the intention of the parties, after the modification agreement was made, to have the lots used for all purposes which were not inconsistent with residential purposes. This driveway is along the north line of lot No. 8, a distance of 257 feet, and it would serve as a driveway to any garage that might be built on that lot.

When the modification agreement was made, defendants' grantor, Mrs. Otis, owned the 11 acres adjoining the Golfside Acres tract on the north, and she had erected a house on said tract and was occupying it. She had no means of reaching East avenue from this property. Her only outlet was in the other direction to the Kelly road over a double-track railroad. She naturally wanted an outlet from her property by way of East avenue. When De Ridder, Stern, and Reed conveyed to Mrs. Otis lot No. 7, containing a restriction that it should be used for residence purposes only, and also provided that no driveway should be maintained on the premises nearer than 5 feet to the side lot lines, nor that it should serve more than three residences on the property in the rear of said lot (meaning the 11-acre tract), then owned by Mrs. Otis, defendants' immediate predecessor in title, it seems to me clear that the parties intended that the restriction to residence purposes did not prohibit the building of a driveway to reach such residences. Indeed, a driveway was contemplated, for it is distinctly referred to in that deed.

Under the terms of plaintiffs' deeds of lots 9 and 10, they could not be subdivided because the Country Club covenants prohibited lots less than 100 feet fronting East avenue. By entering into the agreement. of December 14, 1916, defendants' predecessor in title, Mrs. Otis, owning lot No. 8, consented that plaintiffs might subdivide their lots. Likewise by the same instrument plaintiffs consented that the special restrictive covenants contained in Mrs. Otis' deed of lot 8, which prohibited, among other things, ingress to and egress from her property on the north over lot 8, should be eliminated. That meant, if it meant anything, that the restriction prohibiting her reaching the 11-acre tract from East avenue over lot 8 was removed, and the circumstances justify the inference that, when that restriction was removed by agreement of the parties, there was an implied agreement that she and her successors in title could construct a driveway over lot 8 for the purposes of egress and ingress, which theretofore had been specifically prohibited.

[4, 5] Plaintiffs have enjoyed, and are now enjoying, the benefits of the removal of the restriction with reference to their lots 9 and 10, and

now they seek to deprive Mrs. Otis, who was a party with them to the modification agreement, and her successors, of the rights and benefits they granted to her by the same instrument. I do not think they should be permitted to do it. When this agreement was made, the Golfside Acres map was on file, and all deeds had been made with reference to it. The map showed the Golfside Parkway as a street connecting East avenue with the Kelly road. Plaintiffs accepted their deeds with that map a public record, and they are chargeable with knowledge of what it contained, and it showed upon its face that a driveway to reach these lands in the rear of the Golfside Acres tract was contemplated by all parties, and when plaintiffs took their deeds, with lot 10 bounded on one side by this Golfside Parkway street or driveway, their acts would justify the conclusion that there was a practical construction on their part of the restrictive covenants contained in these deeds permitting such a driveway connecting the 11-acre tract with East avenue.

[6] If plaintiffs' claim were to be upheld, it would result in doing a great injustice to defendants, without any corresponding benefit to plaintiffs. To permit this driveway to stand and be used as a means of reaching East avenue from defendants' lands in the rear of the Golfside Acres tract, no possible harm can come to plaintiffs, and they made no attempt on the trial to prove damages. To close this private driveway, which would result from the sustaining of this judgment, defendants would be deprived of an easy, short, and convenient way of reaching East avenue over their own property, and would be compelled to adopt, as their only way of ingress to and egress from the 11-acre tract, the inconvenient, dangerous, and much longer route by way of the Kelly road, and over the Rochester & Syracuse double-track railroad. In the case of McClure v. Leaycraft, 183 N. Y. 36–44, 75 N. E. 961, 963 (5 Ann. Cas. 45), the Court of Appeals said:

"An injunction that bears heavily on the defendant, without benefiting the plaintiff, will always be withheld as oppressive."

That case was followed in the case of Batchelor v. Hinkle, 210 N. Y. 243-251, 104 N. E. 629.

In determining whether a court of equity should compel defendants to close their private driveway, the decision must depend on the facts established in this case. In other words, each case must depend upon the facts disclosed in its own record. Upon the facts here, I think it would be unfair and unjust to defendants to uphold this judgment, and it would not afford plaintiffs any corresponding benefit. I therefore recommend that the judgment be reversed, and complaint dismissed, with costs.

Judgment reversed, with costs, and complaint dismissed, with costs. Findings of fact reversed, and new findings made in accordance with the opinion. Order to be settled before Mr. Justice CLARK on two days' notice, at which time proposals as to findings to be disapproved and new findings to be made may be submitted. All concur.

(195 N.Y.S.)

PEOPLE v. AMERICAN SOCIALIST SOC.

(Supreme Court, Appellate Division, First Department. July 14, 1922.)

1. Statutes 230-Amendment construed in connection with and as part of amended statute.

Education Law, § 79, as added by Laws 1921, c. 667, § 1, should be read and construed in connection with and as a part thereof.

2. Statutes 206-Act read in its entirety.

In construing an act, it should be read in its entirety.

3. Schools and school districts 4-Statute requiring a license for school, Institute, class, or "course of instruction in any subjects whatever," held appli cable only to subjects taught in schools.

Education Law, § 79. as added by Laws 1921, c. 667, § 1, prohibiting the operation of any school, institute, class, or "course of instruction in any subjects whatever" without a license held not applicable to the teaching of dancing, skating, swimming, and the like, since the words "course of instruction in any subjects whatever" refer merely to subjects taught in schools or classes, in view of the statute as a whole.

4. Constitutional law 81-Legislature may enact laws to prevent teaching of doctrines advocating destruction of state by force.

The Legislature has power to enact statutes for the self-preservation of the state, and to prevent the teaching of doctrines, advocating the destruction of the state by force.

5. Constitutional law

48-Statute will be upheld as constitutional, if possible.

A statute will be upheld as constitutional, if it is possible to do so without disregarding the plain command or necessary implication of the

fundamental law.

6. Constitutional law 48-Statute should be given a constitutional construction, if susceptible of both a constitutional and an unconstitutional construction.

If a statute is susceptible of two constructions, that construction should be given which assumes that the Legislature was mindful of its constitutional limitations and passed a constitutional act.

7. Constitutional law 230 (3)-Statute requiring license for operation of schools held not to deny applicants the equal protection of the law.

Schools and school districts 4-Regents of University required to issue license, where shown that curriculum of applicant does not include teaching of inhibited doctrines.

Under Education Law, § 79, as added by Laws 1921, c. 667, § 1, prohibiting the operation of a school, institute, class, or course of instruction without a license to be issued by the regents of the University of the state, and prohibiting the issuance of a license where it shall appear that the instruction proposed to be given includes the teaching of the doctrine that organized government shall be overthrown by force, violence, or unlawful means, the regents cannot arbitrarily refuse to issue a license, where they have been shown that the curriculum of the applicant does not include the teaching of the inhibited doctrines.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 195 N.Y.S.-51

9. Licenses 7(1)—Statute requiring license for operation of school, course of instruction, etc., held within the police power of the state.

10. Constitutional law 81-Any business of a public nature may be regulated by the Legislature under its police power.

Any business of a public nature or affecting the public interest may be regulated by the Legislature under its police power.

11. Licenses 7 (2)—Statute requiring license for operation of schools, classes, etc., with stated exceptions, held not to unlawfully discriminate against institutions not excepted.

Education Law, § 79, as added by Laws 1921, c. 667, § 1, prohibiting the operation of schools, institutes, classes, or courses of instruction without a license and providing for the issuance of a license, unless it appears from the application, which is required to show the purpose for which the school or course is to be maintained, that the instruction proposed to be given includes the teaching of the doctrine that organized government shall be overthrown by force, violence, or unlawful means, but exempting from its application public schools of the city, union free and common school districts of the state, and educational institutions incorporated by the University of the state, admitted to membership in the University of the state, and schools established and maintained by religious denominations, and classes conducted by fraternal orders incorporated under the laws of the state for the purpose of teaching members the ritual of such orders, held not to unlawfully discriminate against institutions not so exempted.

12. Constitutional law

287-Statute requiring license for operation of schools, classes, etc., held not to deprive persons of liberty and property without due process of law.

Education Law, § 79, as added by Laws 1921, c. 667, § 1, prohibiting the operation of schools, institutes, classes, or courses of instruction without a license, and providing for the issuance of a license, unless it appears from the application, which is required to show the purpose for which the school or course is to be maintained, that the instruction proposed to be given includes the teaching of the doctrine that organized government shall be overthrown by force, violence, or unlawful means, does not deprive persons of liberty and property without due process of law.

Greenbaum, J., dissenting.

Submission of controversy on an agreed statement of facts, pursuant to Civil Practice Act, §§ 546, 547, by the People of the State of New York against the American Socialist Society. Judgment for the People.

Argued before CLARKE, P. J., and SMITH, PAGE, MERRELL, and GREENBAUM, JJ.

Charles D. Newton, Atty. Gen. (Samuel A. Berger, Sp. Deputy Atty. Gen., of counsel, and Frederick R. Rich, Sp. Deputy Atty. Gen., and James Dunne and A. E. Stevenson, both of New York City, on the brief), for the People.

Morris Hillquit, of New York City, for defendant.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(195 N.Y.S.)

MERRELL, J. The defendant, for some years prior to September 1, 1921, has been conducting, maintaining, and operating a school, classes, and courses of instruction at No. 7 East Fifteenth street, in the borough of Manhattan, county and city of New York, under the name and title of "Rand School of Social Science." At the session of the Legislature held in 1921, chapter 667 of the Laws of that year was passed, which was an act to amend the Education Law in relation to licensing and supervision of schools and school courses and making an appropriation therefor. This statute took effect September 1, 1921, and amended chapter 21 of the Laws of 1909, entitled "An act relating to education, constituting chapter sixteen of the Consolidated Laws," as amended by chapter 140 of the Laws of 1910, by inserting therein, at the end of article 3, a new section, to be section 79, to read as follows:

"Sec. 79. Licenses of Schools; Supervision. 1. No person, firm, corporation, association or society shall conduct, maintain or operate any school, institute, class or course of instruction in any subjects whatever without making application for and being granted a license from the University of the State of New York to so conduct, maintain or operate such institute, school, class or course. Such application shall be made in the form and under the rules prescribed by the regents of the University of the State. The application for such license shall be accompanied with a verified statement showing the purposes for which the school, institute, class or course is to be maintained and conducted, and the nature and extent and purpose of the instruction to be given. No license shall be granted for the conduct of any such school, institute, class or course by the regents of the University of the State where it shall appear that the instruction proposed to be given includes the teaching of the doctrine that organized government shall be overthrown by force, violence or unlawful means, or where it shall appear that such school, institute, class or course is to be conducted in a fraudulent manner.

"Licenses shall not be required for the public schools of the city, union free and common school districts of the state nor for educational institutions which are now or may hereafter be incorporated by the University of the State or which are now or may hereafter be admitted to membership in the University of the State; nor shall such license be required of schools now or hereafter established and maintained by a religious denomination or sect well recognized as such at the time this section takes effect; nor shall such license be required for classes conducted by fraternal orders duly incorporated under the laws of this state which have for their purpose solely the instruction of their members in the ritual of such orders. A school, institute, class or course licensed as provided in this section shall be subject to visitation by officers and employees of the University of the State of New York.

"2. A license granted to a school, institute, class or course as provided herein shall be subject to revocation by the regents of the University upon due notice after an opportunity to be heard before the board of regents or a committee thereof or an officer of the education department in each case designated by the board of regents. Such license shall be revoked when it shall appear to the satisfaction of the regents that there is being taught in such school, institute, class or course the doctrine that organized government should be overthrown by force, violence or unlawful means, or that the same is being conducted in a fraudulent manner. The action of the regents of the University of the State in refusing to grant a license to any applicant as provided in this section or in revoking a license previously issued shall be subject to review by certiorari in the Supreme Court of the state, as provided by law.

"3. Any person, firm, corporation, association or society, or any representative or employee thereof, maintaining or conducting a school, institute, course or class without a license granted as herein provided shall be guilty of a misdemeanor and upon conviction therefor shall be punished by a fine not ex

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The New York Supplement, Volume 195