152 N.Y.S. 633 | N.Y. App. Div. | 1915
Plaintiff, the owner of a plot of land on the southeast corner of Madison avenue and Seventy-second street in the city of New York, sues under section 1638 et seq. of the Code of Civil Procedure to determine the validity of a claim asserted
The nature of the defendants’ claim is not that they, or any of them, have any title to plaintiff’s property or lien thereon, or any right themselves to use or enjoy it, but that they have the right to exercise dominion over it to the extent that plaintiff may not without their consent use and enjoy it in any manner and for any purpose that it may see fit, or otherwise than in accordance with respondents’ claim of domination.
It is argued with much learning and force that this right which the defendants claim is not technically an easement over plaintiff’s property, and that defendants’ claim as stated in the complaint cannot be a true easement because not alleged to have arisen in grant or by presumption of a grant. It is not necessary to pass upon this contention (See Simmons v. Crisfield, 197 N. Y. 365, 367) for if it be conceded still it does not follow that the claim is not one which may be litigated in an action brought under the above-mentioned sections of the Code. The language of section 1638 is that the action may be brought to compel the determination of any claim adverse to that of the plaintiff “including any claim in the nature of an easement therein.”
The claim which the defendants admit that they make whether or not technically an easement, is certainly a claim “in the nature of an easement” for it includes the elements of a claim to domination over plaintiff’s property for the benefit
The objection that it is insufficient to allege in the words of section 1639 of the Code that defendants “unjustly” make a claim, and that the plaintiff should state facts showing wherein the unjustness consists seems to be answered by King v. Townshend (78 Hun, 380). Nor is it necessary that the plaintiff should undertake to set forth the source and basis of defendants’ claim. It is sufficient that the defendant makes a claim; its source and validity is for him to assert if he stands upon his claim.
We are of opinion that the complaint states a good cause of action. The judgment appealed from must, therefore, be affirmed, with costs, with leave to appellants to withdraw their demurrers and answer within twenty days upon payment of costs in this court and in the court below.
Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.
Judgment affirmed, with costs, with leave to defendants to withdraw demurrers and to answer on payment of costs in. this court and in the court below.