Guichard v. City of New York

4 A.D.2d 676 | N.Y. App. Div. | 1957

In an action to enjoin the maintenance by respondent, the City of New York, of a storm drain through appellant’s property, and for other relief, the appeal is from a judgment entered after trial dismissing the complaint upon the merits. Judgment affirmed, with costs. No opinion. Ughetta, Hallinan and Kleinfeld, JJ., concur; Wenzel, Acting P. J., and Murphy, J., dissent and vote to reverse and to grant judgment in favor of appellant, with the following memorandum: Respondent on its own admission acquired neither title nor a permanent easement to the property in question. In 1934 respondent requested permission of the then owner to use the property “ as a temporary storm drain ”. The fact that the use was to be “ temporary ” was emphasized in such request. In 1942 respondent wrote acknowledging that “ there is no definite permission or easement allowing us the use of your property for this purpose” and stated “we are making studies for the relocation of this drain and would appreciate any consideration of time you can give us to this end.” Thus, this “ temporary ” permissive use has now existed for 23 years and it may not be said that appellant’s demand that the drain be removed is precipitate or unreasonable.