Smith v. Martin — 142 A.D. 60

Majority

p. 60

Irving T. Smith, Respondent, v. Marion S. I. Martin and Irving T. Smith, as Executors, etc., of Eliza J. Smith, Deceased, and Others, Defendants, Impleaded with Gaetano de Nicola, Appellant.

Second Department,

December 30, 1910.

Headnote

Real property — action for registration of title — when abutting owner having easement in party wall should not be allowed to answer — estoppel.

Where the complaint in an action for the registration of title to lands alleges that the plaintiffs .boundary runs through the center of a party wall, the adjoining owner, although also having an ■ easement in the party wall, should not be allowed to file an. answer which contains no defense based upon such ownership, and asks for no affirmative relief.

But the plaintiff should .be required to stipulate that any judgment or order entered in the action and any certificate of registration of title shall contain, a

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recital that it is without prejudice to the rights, if any, of the abutting owner.

■In any event, such abutting owner would not be estopped by any judgment that may be entered, where he was excluded from the record on the plaintiff’s motion to vacate an order allowing him to appear and answer.

Appeal by the defendant, Gaetano de Nicola, from an order of the Supreme Court, made ■ at- the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of October, 1910.

William Bell Wait, Jr., for the appellant.

Gilbert Ray Hawes [Matthew J. Wheelehan with him on the brief], for the respondent.

This is an appeal from an order vacating, upon motion, an ex parte order .allowing the appellant to appear and answer in an action for registration of title. Smith, plaintiff, and. Nicola, appellant, own adjoining premises, with a party wall between. The complaint alleges that the plaintiff’s line runs through the center of the party wall. Nicola in his affidavit nowhere states that he owns any interest in the premises, or that the line runs through the party wall, otherwise than as stated in the complaint, and gives no reason whatever for becoming a party save “that the judgment in this action must necessarily determine the location of said boundary line in respect to said party wall,” etc.. In his answer he makes denials upon information and belief as to many of the material allegations of the complaint, but he does not show that he has, any interest justifying such denials, or that he has any interest whatever adverse to the interest of the plaintiff as alleged in the complaint. Indeed, the only interest that Nicola alleges is “ that this defendant has a party wall easement in said property. herein sought to be registered,” which conforms precisely to the right ascribed to him in the complaint. -

In Duffy v. Shirden ( 139 App. Div. 755 ) this .court decided that where an abutting owner was made a party a cause of action was not stated by an allegation only that he was an abutting owner. In the present case Nicola is something more than an abutting owner. He owns an easement in the party wall, and the answer which he proffers

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does not contain a defense based upon such ownership, nor does it ask for any affirmative relief, and he should not be allowed to appear for the purpose of serving such answer. If it "were merely a question whether he should be allowed to appear in the action to watch his interests his application might be justified, because, although the complaint correctly sets forth his interest in the party wall, Nicola would have a right to appear and see to it that the judgment accorded with the pleading. But he asks to come in and serve the answer, which is obviously to make trouble' and delay in some interest other than his own. As it is, the judgment, whatever it may be, cannot estop him, as he is excluded from the record upon the plaintiff’s motion.

'The order should be affirmed upon condition that plaintiff stipulate that any judgment and order that may be entered in this action, and any certificate of registration of title that may be issued in connection therewith, shall contain a recital tliat.it is without prejudice to the rights, if any, of the said Gaetano de Nicola.

Jenks, Burr and Rich, JJ., concurred ; Caer, J., not voting.

Order modified in accordance with opinion, and as so modified affirmed, without costs.