197 A.D. 260 | N.Y. App. Div. | 1921
Plaintiff’s conveyance has no reference to any right of way from Cedar Grove avenue to the beach, and contains no grant of an easement in defendants’ lands. His pleading does not show him entitled to a mandatory injunction to remove fences and buildings which closed this way in 1906, fourteen years before bringing this suit and ten years before his purchase of lands to the westward of these lots. Furthermore, there was no public acceptance of the dedication of 1847, and no averment of such a continuous user as would make out a subsisting private easement. When dominant and servient tenements met and the rights were unified in the title of Susan A. Burbank, in whom all of lot No. 7 became vested in 1874, the subsequent conveyances referring to the “ aforesaid deed to the party of the first part,” taken in connection with the facts then appearing, did not regrant or revive this right of way. (Wheeler v. Clark, 58 N. Y. 267; Parsons v. Johnson, 68 id. 62.) Unless all the allegations of. the complaint are so technically correct as to obviate the necessity of proof to exclude the exercise of the court’s discretion, a mandatory injunction should not be granted by means of such a motion upon the pleadings.
I advise, therefore, that the order be affirmed, with ten dollars costs and disbursements, and with leave to amend the complaint on payment of costs.
Blackmar, P. J., Mills, Kelly and Jaycox, JJ., concur.
Order affirmed, with ten dollars costs and disbursements, with leave to amend the complaint on payment of costs.