The court can take judicial notice of the offensive character of such a business. Judges must be supposed to be acquainted with the ordinary sentiments, feelings and sensibilities of the people among whom they live, and hence in this case the learned judge, after the character of the business carried on by the Taylor Company had been proved, could have found, as matter of law, that it was in violation of the restriction agreement, without any further proof. It was, therefore, unnecessary for the plaintiff upon the trial to call witnesses from the neighborhood to give their opinions that this business was injurious and offensive. Even if such opinions were erroneously received, they were unnecessary and harmless, as upon the undisputed evidence as to the character of the business carried on the legal conclusion of the trial judge must have been the same.

1The Taylor Company was engaged in the business of embalming and undertaking. - Ed.

But it is contended that the restriction agreement ought not in this case to be enforced, because most of the lots in the block between 42d and 43d streets and Madison avenue and Vanderbilt avenue are no longer occupied for residences, and are devoted to business purposes, and the counsel for the appellant cites as an authority on this point our decision in the case of The Trustees of Columbia College v. Thacher. The principles of that case are not applicable to the facts of this. There it appeared that the contract which the plaintiff sought to enforce was no longer of any value to it, and that its enforcement would result in great damage to the defendant, without any benefit to anyone. Here the plaintiff has the right to occupy her house as a residence, and in such occupation to have the protection of the restriction agreement. She has never violated the agreement herself, or consented to or authorized or encouraged its violation by others. In order to have the benefit of the agreement, she is not obliged to sue all its violators at once. She may proceed against them seriatim or she may take no notice of the violations of the agreement by business carried on remotely from her residence, and enforce it against a business specially offensive to her by its proximity. This is not a case where the defendants can ask for immunity in an equitable form, because others are in greater or less degree also violators of the agreement. The plaintiff has done nothing and omitted nothing which should authorize the occupant of an adjoining lot, in violation of the agreement, to make her residence uncomfortable and undesirable. Generally, whether an equity court will refuse to restrain the violation of such an agree-ment, and leave the parties to their legal remedies on account of the changed conditions affecting the premises to which the agreement relates, rests in the discretion of that court, and such discretion will not be reviewed upon appeal here. The question to be determined in the exercise of such discretion depends largely upon the facts, and mainly whether the enforcement of the agreement would greatly harm the defendant without any substantial benefit to the plaintiff, so as to make the enforcement inequitable, we cannot say, reviewing all the evidence in this case, that it would be inequitable for the plaintiff to enforce the agreement.

The appellant claims that the judgment is too broad in its restraints. But we think all his rights are fully protected by the sixth clause of the judgment, and the subsequent action of the court under that clause upon the application of the Taylor Company.

The matters to which we have thus given attention cover the whole ground of the appeal, and our conclusion is, that the judgment must be affirmed, with costs.

Judgment affirmed.

3. Restriction as to Equitable Waste When There is an

Executory Devise Over.

Turner V. Wright

2 De Gex, Fisher and Jones (Eng. Ch.), 234. - 1860.

The Lord Chancellor. - In this case the plaintiff by his bill, prayed an injunction "to restrain the cutting of any timber, or at any rate of any ornamental timber," growing upon the lands devised in fee to the defendant, subject to an executory devise over to the plaintiff.

The decree of the vice-chancellor declared, " that the defendant is entitled to fell all such timber on the devised estates as is mature and fit to be cut, except such as has been planted or left standing by way of ornament or shelter with reference to the occupation of the mansion-house on the said devised estates; but that he is not entitled to fell any unripe timber or any timber planted or left standing for ornament or shelter as aforesaid."

The result of the decision is, that the defendant is dispunishable of legal, but not of equitable, waste. After great consideration, I agree with the vice-chancellor on both questions.

As to the first, my opinion is clear and decided. The defendant is tenant in fee simple, with all the incidents of such an estate, although there be executory devises over in case he should die without leaving issue living at the time of his decease. Not making any unconscientious use of the powers belonging to him as tenant in fee simple, why should he not reasonably exercise these powers? Is there anything unconscientious or unreasonable in his cutting down timber mature and fit to be cut, and not such as has been planted or left standing by way of ornament or shelter? If we are to regard the intention of the testator in such limitations, can the intention be supposed to be, that the first taker, who is made tenant in fee, should during the whole of his life, although he should have numerous children and grandchildren, not be entitled to cut down a tree upon the property, unless for his botes? In this case, the presumed intention of the testator is strengthened by the first executory devise over, which is for life and sans waste. He could not have intended that the first taker, to whom he gave a fee, should be more restricted in the management of the property than the devisee over, to whom he gave only a life estate. Having given the first taker a fee, he probably thought it quite unnecessary expressly to make him dispunishable of waste.