Sauchelli v. Fata

281 A.D. 895 | N.Y. App. Div. | 1953

— 'Action for an injunction to enjoin defendants from using a privately owned cul-de-sac for ingress and egress to and from property owned by defendant Josephine Bestone Fata, abutting thereon, and to recover damages alleged to have been sustained because of certain acts of defendants in said cul-de-sac. Plaintiffs appeal from a judgment dismissing the complaint after trial ' at Special Term. Judgment affirmed, with costs. Defendant Josephine Bestone Fata owns property abutting the cul-de-sac and has a right of ingress and egress thereover equal to that of plaintiffs, the other abutting owners. Wenzel, Schmidt and Beldock, JJ., concur; MaeCrate, J., concurs in result, with the following memorandum: Plaintiffs failed to establish any rights in the cul-de-sac which would justify the injunction sought by them against the defendants. Adel, Acting P. J., dissents and votes to reverse the judgment and to direct judgment in favor of plaintiffs for the relief prayed for in the complaint only to the extent of restraining the defendants and those claiming under them from using that part of Bay Street, subject of the action, for ingress and egress to and from the land owned by either of them, with the following memorandum: Plaintiffs are the sole abutting owners on the cul-de-sac as laid out on a private subdivision map. It is conceded that the cul-de-sac is not a public street. Therefore, only those persons who owned lots plotted on the map on which the cul-de-sac is shown acquired any easements therein. The defendants are not such owners. The property owned by defendant Josephine Bestone Fata is plotted on another map, and the fact that her grantor in conveying to her granted his right, title and interest in and to that part of Bay Street does not help the defendants, for he had no rights therein to convey. On the other hand, plaintiffs, by the conveyances to them, did not acquire the right to close or fence in the property in the cul-de-sac nor have they the exclusive right to the use thereof. Their rights therein are not exclusive. Other owners of plots on the map under which they purchased have easements therein of which they may not be summarily deprived.