117 N.Y.S. 542 | N.Y. App. Div. | 1909
In the year 1849 the Farmers’ Loan and Trust Company was the owner of a plot of ground between Broadway and Sixth avenue and Twenty-fifth and Twenty-sixth streets in the city of Hew York. It had caused a map of this plot to be made and filed in the office of the register of the city and county of Hew York in the year 1848. Upon this map the land fronting on the- streets is divided into lots of twenty-five by ninety-three feet nine inches in depth ; the land fronting on Sixth avenue is divided into lots about twenty feet in width by seventy-five feet in depth, and on each of the streets (Twenty-fifth and Twenty-sixth streets) between the -lots as laid down on the maps and the streets there is a strip of land extending from Broadway to Sixth avenue, not included within the boundaries of the lots, and which is designated on the map as “ Five feet on width reserve for court yards.” On the 2-Otli of February, 1849, the Farmers’ Loan and Triist Company, the owner of this block, as party of the first part, entered into a certain indenture in which Garrit Storm was the party of the second part and Franklin 3. Kinney and Mary C., his wife, were parties of the third part. This agreement recited that the party of the first part was the owner of a block of land bounded by Broadway, Sixth avenue, Twenty-fifth and Twenty-sixth streets, and was also the owner of part of a block of land bounded by Broadway, Sixth avenue, Twenty-fourth and Twenty-fifth streets; that the party of the second part was the owner of a part of the block fronting on Twenty-fifth street, extending from the land of the party of the first part to Broadway, and that Franklin S. Kinney, one of the parties of the third part, was the owner of part of the last-mentioned block fronting on Twenty-fourth street; and for the purpose of rendering the said two blocks desirable locations' for residences and buildings of the first class and to prevent the use or occupation" of any part of the
Upon the trial at the Special Term the court dismissed the complaint, and from the judgment entered thereon the plaintiff appeals. The trial judge, while stating that this set-back agreement had been for sixty years uniformly observed, came to the conclusion that so far as modern business buildings are concerned,-it is most desirable that those buildings should be set up to the street line in order that there may be additional space in the rear for the purpose of pro
By the map of the property filed by the Farmers’ Loan and Trust Company, when owning the entire block, this strip of five feet in width on the southerly side of Twenty-sixth street was not included in the lots which were laid out upon the map, but there was in substance five feet added to the width of the street, and which, in effect, ■ dedicated that five feet to be continued as a part of the street. If the owners of this block had laid out an alleyway, or street, through the block and subsequently conveyed the property with relation to. the map upon which the street or alleyway had been laid out, each of the grantees would have acquired an easement in the street or alleyway thus laid out which neither the original grantor nor one of his grantees could have closed without the consent of all of the property to which such an easement was appurtenant, and I think
Patterson, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Judgment reversed and new trial ordered, costs to appellant to abide event.