264 A.D. 903 | N.Y. App. Div. | 1942
Action for rescission. Judgment declaring a full covenant and warranty deed delivered by Radspi Realty & Coal Corp. to the plaintiffs to be null and void, and awarding judgment for the consideration paid to the grantor by the plaintiffs, affirmed, with costs. Order denying motion to reopen the trial and adduce newly-discovered evidence affirmed, with ten dollars costs and disbursements. No opinion. Hagarty, Carswell, Adel and Close, JJ., concur; Lazansky, P. J., concurs as to affirmance of the order but dissents as to affirmance of the judgment and votes to reverse the judgment and to dismiss the complaint, with the following memorandum: The city map was filed in 1916. The property herein was conveyed in 1940. No eminent domain proceeding has been commenced. There was no finding of misrepresentation. Building beyond the line laid out on the city map without the permit mentioned in section 35 of the General City Law is not an encumbrance. Section 35 is unconstitutional. Headley v. City of Rochester (272 N. Y. 197) is not to the contrary, although it easts a shadow in that direction.
