273 A.D. 1010 | N.Y. App. Div. | 1948
Judgment reversed on the law and the facts, with costs, defendants’ motion for judgment dismissing the complaint denied, and plaintiff’s motion for judgment as prayed for in the complaint granted, with costs, to the extent of declaring that plaintiff has an easement or right of way for driveway purposes over the strip of land eight-feet wide immediately adjoining on the south side of plaintiff’s premises. The case of Buffalo Acad, of Sacred Heart V. Boehm Bros. (267 N. Y. 242) is inapplicable. It deals only with a covenant imposing building restrictions upon the use to which the property may be put. Such restrictions are not analogous to an easement. That ease, therefore, must be confined to its own facts. Moreover, an examination of the title of defendant Wire Forms, Inc., would have disclosed, in the deed of Rebecca Dashéff to the L. R. S. Building Corporation, the creation of the easement in question. The existence upon the record of this deed containing the easement must be regarded as constructive notice to defendant Wire Forms, Inc. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lewis, P. J., Johnston, Adel and Sneed, JJ., concur; Wenzel, J., concurs on the ground first stated. Settle order on notice.
