75 N.Y.S. 695 | N.Y. App. Div. | 1902
Lead Opinion
This action was brought to obtain a judgment establishing that a portion of the walls of six houses belonging to the defendant, situated upon the east side of Riverside drive, between Eighty-second and Eighty-third streets, in the city of New York, unlawfuly obstructs the public highway, and constitutes as such, an interference with the plaintiff’s easements of light, air and access, and for a mandatory injunction against the maintenance of the same, together with damages. There have been two trials of the action. Upon the first trial'the plaintiff obtained a judgment awarding her damages, with the privileges of applying in the future to the court for leave to reopen the case and prove additional damages in the event of the erection of a building upon her lot, but on appeal: this judgment was reversed and a new trial ordered (Ackerman v. True, 56 App. Div. 54) on the ground that the award of damages being the only relief granted, the defendant was entitled to have the assessment of damages made by a jury, and could not be deprived of such right by the act of the plaintiff in bringing her action in equity.
The facts, so far as they are material to the question involved, are substantially as follows: The plaintiff purchased from the defendant and is now the owner and in possession of a vacant lot of land situate at the northeast corner of Riverside drive and Eighty-second street. It had a frontage of thirteen feet four and three-fourths inches on Eighty-second street and sixty feet four and three-fourths inches on Riverside drive. In 1898, after the plaintiff had purchased her lot, the defendant began and has since completed the erection of six dwellings north of and immediately adjoining the plaintiff’s lot. Each of these dwellings has a “ swell front,” extending from the ground to the roof — five stories — and each projection being of different shape, extending between three and four feet beyond the building line into the street. The walls of the house next to and adjoining the plaintiff’s lot extend beyond the building line three feet and six inches into Riverside drive, which is a public highway. The defendant contends that the structures of which the plaintiff complains are not illegal, inasmuch as they were constructed according to plans filed with the building department and approved by the park commissioners of the city. The trial court, in view of the conclusions reached, deemed it unnecessary to and did not pass upon this question, but assumed, for the purposes of the decision made, that such structures are illegal. Therefore, that question is not now before us, and, in view of the finding made by the trial court to the effect that the plaintiff had not sustained any damage by reason of the alleged illegal structures, we should affirm the judgment were it not for the further finding made to the effect that the plaintiff acquiesced in their construction, and by reason thereof is estopped from invoking the exercise of the equitable powers of the court to compel their removal. This finding is clearly
The judgment appealed from, therefore, must be modified by providing that it shall be without prejudice to the right of the plaintiff or those claiming title through or from her, either by grant, inheritance or otherwise, whenever they shall build upon the lot in question, to maintain an action against the defendant or those claiming title to or through him, either by grant, inheritance or otherwise, to compel the removal of the illegal structures, if such they shall be found to be, together with such damages as the owners of the lot may establish, and as thus modified, the judgment must be affirmed, without costs to either party.
O’Brien, Hatch and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
(dissenting):
1 dissent. I think that the plaintiff is entitled now to have that part of the wall removed which projects into the street and which is a palpable obstruction of the light, air and access to the adjoining lot.
Judgment modified as directed in opinion, and as modified affirmed, without costs to either party.