113 N.Y.S. 886 | N.Y. App. Div. | 1908
Lead Opinion
This is an action by a vendee of real estate against a vendor to recover moneys paid, together with the cost and expense of examin
On the 22d day of October, 1906, the defendant owned the premises known as Flos. 556 and 558 Fifth avenue in the borough of Manhattan, Mew York, being 50 feet front by 100 feet in depth, and on that day it entered into a contract with one Meadle to sell and convey the same to him. The sale was to be consummated on the 15th day of January, 1908. Meadle, after paying $40,000 on the purchase price, pursuant to the provisions of the contract, assigned the contract to the plaintiff, with the consent and approval of the defendant. Prior to the time for closing the sale the plaintiff made further payments on account of the purchase price, aggregating $35,000. Plaintiff rejected the title on the ground that the front wall of the building on the premises encroached upon Fifth avenue, a public highway, to the extent of seven inches. The agreement, after reciting that tile defendant agreed to convey and Meadle agreed to purchase the premises and describing them, contains the following provision: “ Subject to party wall agreements, if any, affecting said party walls, and also subject to variations or encroachments, if any, not to exceed two inches in the center lines of said party walls or in the lines of adjoining independent walls or in the fence lines. Subject also to an encroachment, if any, not to exceed one inch on Fifth avenue. Subject also to the encroachment of the stoop and area'upon the land owned by the City of Mew York.”
The defense to which the demurrer is interposed contains no denial, but alleges as follows: “ That the front wall of the premises referred to in the contract does not and did not at any time encroach upon Fifth Avenue, as alleged in the ninth paragraph of the complaint. That below the first story of said building there is a basement front, or water table projection, not exceeding seven inches in thickness, attached to and forming part of said wall, and which projection defendant is informed and believes constitutes the supposed encroachment referred to in the complaint; that the same is not a necessary part of said front wall, but is easily removable
The only question arises with respect to the alleged encroachment on Fifth avenue. The right to maintain the building in its present condition with respect to that alleged encroachment could only be questioned by adjoining or adjacent owners or by the public authorities. There is no probability and scarcely a possibility that an adjoining or an adjacent owner could successfully invoke any remedy to disturb the maintenance of the building as it now stands by the purchaser.
The alleged obstruction has existed for thirty-eight years. It is not concealed and is open and obvious. The defendant undoubtedly has obtained by prescription the right to maintain the building as it is, as against adjoining or adjacent owners. The right to maintain such a structure, even though it encroaches upon a public street, may be obtained by prescription as against other property owners on the street by twenty years of adverse user. (Scallon v. Manhattan R. Co., 185 N. Y. 359; Hindley v. Manhattan R. Co., Id. 335.) The only theory on which it may be contended that this prescriptive right has not been acquired would be that those having the right to object have licensed the struc
The specific agreement with respect to an encroachment on Fifth avenue should be construed as relating to an unlawful encroachment which the public authorities may remove.
It follows, therefore, that the interlocutory judgment should be affirmed, with costs.
' Patterson, P. J., and Scott, J., concurred; Houghton, J., dissented.
Dissenting Opinion
The fair interpretation of the allegations of the third defense is that the whole basement front of the building projects into the street
I do not understand the right to maintain an encroachment in a street can be acquired by prescription either as against the public or an adjacent owzier. An encroachment upon a public highway is a public nuisance. A municipality cannot grant the right to maintain it (Ackerman v. True, 175 N. Y. 353), nor can such a right as against the public be acquired by prescription. (21 Am. & Eng. Ency. of Law [2d ed.], 733.) Title through prescription presupposes a grant. An abutting owner could not grant to another abutting owner the right to maintaizi an encroachznent in the street. An abutting owner havizzg no right to make such a grant it cannot be presumed. The nuisance being a public .one no right by user can be acquired to maintain it. (Mills v. Hall, 9 Wend. 315.)
The rule in the elevated railroad cases has no application. The elevated railroad companies were not trespassers in the highway nor were the structures which they erected nuisances. They were izi the street lawfully and wrongfully appropriated the easeznents of light, air and access of abutting owners, and had the right to condemn such easements or purchase them, and hence adverse user on its fact could ripen into title. (Bly v. Edison Electric Ill. Co., 172 N. Y. 1, 7.) The Lotus Club building does not occupy the same legal position as the elevated railway and cannot invoke title by prescription to maintain its nuisance upon the street as against adjacent and abutting owners.
I have very grave doubts respecting the constitutionality of chapter 646 of the Laws of 1899, which creates a short statute of limitations against the city for the rezno val of encroaehznezits upon streets. But whether it is effective against the city or not, abutting owners still retaizi their rights, as this court has recently held
Interlocutory judgment affirmed, with costs. Settle order on notice.