Epstein v. Bardonia Park Homes, Inc.
1961 N.Y. App. Div. LEXIS 12435
| N.Y. App. Div. | 1961

In an action to recover damages for breach of a written agreement, under the terms of which defendant agreed at its own cost and expense to widen and deepen a stream which drains the lands of the parties, *981and to do certain other work, defendant appeals from an order of the County Court, Rockland County, dated September 12, 1960, denying its motion, pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings dismissing the complaint on the ground that it fails to state facts sufficient to constitute a cause of action. Order affirmed, with $10 costs and disbursements. No opinion. Nolan, P. J., Beldock, Ughetta and Christ, JJ., concur; Kleinfeld, J., dissents and votes to reverse the order and to grant the motion for judgment on the pleadings dismissing the complaint, with the following memorandum: The agreement provides that defendant “ may enter upon ” plaintiffs’ land “ for the sole purpose of ” widening and deepening a stream running from defendant’s land to plaintiffs’ land. The complaint contains no allegation to the effect that defendant availed itself of the right of entry, and hence no obligation arose on defendant’s part to perform any of the covenants in the agreement.