Majority
p. 367Richard Kelly, Appellant, v. James T. Penfield and Minnie Penfield, Respondents. Second Department, June 4, 1909.
Headnote
Vendor and purchaser—injunction—-street closing—maps advertising sale—relief.The purchaser of a lot on a mapped tract situated on the boundary between New York city and Mt. Vernon may restrain his vendor by injunction from closing a street shown on the map where he would be cut. off from access toward the north and Mt. Vernon, and the lot would be materially injured.
Where the more complete of two maps forming part of the advertisement of a sale shows the street in question extending to South street- in Mt. Vernon, but the other map, more restricted in its details and intended to show only the general location of the tract, does not, the purchaser had a right to rely on the first map.
If it be inequitable to compel the vendor, who has erected a house on the land marked as a street, to take down, his house,- the plaintiffs whose lot is vacant, should get relief by way of damages ; or, in the alternative, defendant should be compelled to repurchase the lot at a valuation fixed by tbe court.
Burr, J., dissented.
Appeal by the plaintiff, Richard Kelly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the. 4th day of ¡¡November, 1908, upon the decision of the court,- rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits in a suit to restrain the defendants from closing a part. of a street.
The defendant James T. Penfield conveyed a lot of land to the
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plaintiff, i't being sold at a general auction sale by the defendant by lots of a tract of land owned by him. The tract was situated in the city of New York at the boundary between it and the city of Mount Vernon. The said sale was advertised by a descriptive pamphlet which contained two maps showing the lots by numbers and the streets. The lot sold to the plaintiff was 9T, on the West side of Sound View Place, as shown on the said maps. On the other side of the said street on which the said lot is; and nearly opposite the said lot, a street marked on the said maps as Warner Place, runs at right angles from the said lot street East one block" of 200 feet to another short street of two blocks in length, running parallel with said lot street, and marked on .the said maps as Dis-brow Place. One of these maps shows the said Disbrow Place as running at its North end into a street shown on the' said maps as South street/ It was over the line in Mount Vernon. This was the more complete map of the two; it showed all details of the tract and its surroundings. The other map had a broad line around the tract being sold, and was more restricted than the other map in details. 'Its object was more .to show the general location of the tract. Disbrow Place was shown on it, but not as opening into South street. The deed to the plaintiff referred to still another map, filed in the office of the .Kegister of Deeds of New York county, as showing the lot sold, and it showed Disbrow Place as running into South street. The.said defendant has closed up Disbrow Place north of Warner Place, namely, between South street and Warner Place, and. is building a house on it. This action is to restrain him from so. doing.
Rufus L. Weaver, for the appellant.
Henry Willis Smith, for the respondent James T. Penfield.
William T. Tomlinson, for the respondent Minnie Penfield.
By the closing of Disbrow Place from • Warner Place to South street, the plaintiff is cut off from access toward the North, namely, to South street and Mount Vernon, there being no opening thereto in the neighborhood. The only other way out is in the opposite
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direction, namely, toward the South. It cannot well be said that his lot is not materially injured thereby. Disbrow Place is not a remote street upon which his lot does not depend for egress. ^On the contrary, his lot is directly connected with it by another short street, established only to run from the block which the lot is on to Disbrow Place, and the principal reason for going through it to Disbrow Place must be to get out to South street, viz., to Mount Vernon. The recent case of Reis v. City of New York ( 188 N. Y. 58 ) is'an authority for the plaintiff instead of for the defendant, for what is held there is substantially that the purchaser of a lot on a mapped tract may not restrain the closing of remote streets shown on the map, on which his lot in no way depends for ingress or egress. The suggestion that the two maps which formed part of the advertisement of the sale taken together showed that Disbrow Place was not laid out to South street is not tenable. The one which showed all the details of the tract and its surroundings exhibited it as so laid out, and the plaintiff had the right to rely on it. If the defendant’s house be built, and it be inequitable to make him take it down, the plaintiff, whose lot is vacant, should get other relief as by way of damages, or that his lot be taken by the defendant at a valuation to he fixed by the court, as an alternative.
The judgment should be reversed.
Woodward, Jerks and Mtller, JJ., concurred; Burr, J., voted for affirmance on the opinion at Special Term.
Judgment reversed and new trial granted, costs to abide the event.
Cases cited
- Reis v. City of New York 188 N. Y. 58 p. 369