76 N.Y.S. 881 | N.Y. Sup. Ct. | 1902
' This is a suit to compel the removal' of a wall alleged to encroach upon plaintiff’s premises and to recover dam"ages. The only point at issue is whether defendant’s westerly wall stands upon plaintiff’s lot, No. 3114 Third avenue. The
Section 1499 of the Code of Civil Procedure does not apply to this case, although part of the property consists of a strip of land not exceeding six inches in width, because noi building has been erected upon land of the plaintiff abutting the defendant’s wall. A recovery of damages does not therefore of itself transfer to the defendant the title to the strip encroached upon, but the execution of such a conveyance is appropriate and proper. In McSorley v. Gomprecht, 30 Abb. N. C. 412, it was suggested that the complaint be amended so as to* demand alternate relief, and an offer to release to* the defendant the strip covered by the defendant’s wall on payment of the damage caused by the appropriation. On the authority of Crocker v. Manhattan Life Ins. Co., it is not necessary to direct an amendment. The court there said: “It is quite possible to embody in a judgment a protection of defendant’s right to maintain its wall on the payment of damages without requiring a grant of the easement, but the result is not different if the easement be conveyed, and in Amerman v. Deane, 132 N. Y. 355, it was decided that the execution of the
The plaintiff is awarded) a decree in the alternative. The plaintiff may execute, acknowledge, and deliver to the defendant, within thirty days after entry of judgment, a deed of the strip of land covered by the encroachment, releasing all damage occasioned thereby, the form of such instrument to be settled on notice, and thereupon the defendant shall pay the plaintiff
In case of failure of plaintiff to execute and tender the instrument! as above described, the prayer of the plaintiff for equitable relief must be denied.
Judgment accordingly.