156 N.Y.S. 845 | N.Y. App. Div. | 1915
The plaintiff is the owner in fee of two lots (Nos. 15 and 16), situate on the easterly side of Fresh Pond road, in the county of Queens. The defendant brewing company owns one lot (No. 17), adjoining plaintiff’s on the south; the defendant Calocero owns one lot (No. 14), adjoining plaintiff’s on the north. These lots and the remaining ones in the same block, north of plaintiff’s lots, and the lots in the first block south (between Hughes street and Catalpa avenue) belonged originally to a common owner who conveyed the same by deeds describing them as abutting on the easterly line of Fresh Pond road and containing a descriptive covenant that the grantees, their heirs or assigns, “will not at anytime hereafter erect
Prior to August 7, 1912, the city of New York instituted condemnation proceedings for the purpose of widening Fresh Pond road, and on that day an order was made confirming the report of the commissioners which changes the lines of said road, extending its easterly line further to the east. As a consequence portions of the fronts of the lots in both blocks included within the said ten-foot strip were acquired by the city. The new east line intersected Hughes street at the southwest corner of lot 17, and, extending northerly, was at the northwest corner of said lot approximately one foot east of the original line. The amount of frontage taken from each northerly lot in the block was greater, a strip two feet wide at the south side and about three feet at the north side being taken from plaintiff’s frontage: A strip about three feet at the south side and five feet at the north was taken from the frontage of the lot owned by the defendant Calocero, increasing to about ten feet at Cornelia street, four lots further north. After the new street line was so established, the road was made to include a portion of the ten-foot strip, which was intended to be restricted. On August 25, 1914, the defendant brewing company completed a three-story brick building on lot No. 17, the front of which was flush with the new easterly line of said road. Since the completion of this building, the ground floor has been used as a retail liquor store and the two upper floors are used as flats. Prior to the erection of this structure, a two-story frame building which had been built to conform with the restriction line stood on the lot, the ground floor of which had been used for about eight years as a retail liquor store. On the plaintiff’s two lots there is, and for about seven years has been, a one-story wooden building used wholly for business purposes, the front of which
Jenks, P. J., Carr, Mills and Putnam, JJ., concurred.
Judgment for defendants upon agreed statement of facts, without costs.