Bowler v. Apex Builders, Inc. — 259 A.D. 834

Majority

p. 834

Rose K. Bowler, Harry J. Kuntzelman and Marguerite Gleisner, as Joint Tenants, Survivor to Take All, Tilye F. Joy, Francis A. McCloy and Estelle McCloy, Guilietta Gandolfi, Margaret Wolz, Nellie Lehane,

p. 835

Margaret Symczynski and Helen Aktabowski, David Cohen, Gustav Schultz and Eva Schultz, Paul Dullzell and Vivian Dullzell, Plaintiffs, on Behalf of Themselves and All That Group of Owners in Fee of Premises Having Common and Reciprocal Private Rights of Way, Rear Driveway Easements and Service Roads on the Adjacent Premises on the Easterly Side of 188th Street, between 47th and 48th Avenues, Flushing, New York, Plaintiffs, Respondents, v. Apex Builders, Inc., Samuel Guterman and Julius Guterman, Defendants, Respondents, Bertha North, Edmund Nordland and Anita Nordland, His Wife; John Goldthorpe and Annie Goldthorpe, His Wife; Stephen M. Pollock and Anna K. Pollock, His Wife; Felix Laskowski and Antoinette Laskowski, His Mother, Appellants; Edna C. Kessler and Others, Defendants.

Action for a mandatory injunction for the removal of certain obstructions upon a right of way created by a declaration of easement. Judgment which, among other things, decrees that appellants and others have abandoned any and all rights which they possessed in and to certain easements granted by a declaration of easement in writing, reversed on the law and a new trial granted, with costs to appellants, to be paid by the plaintiffs, to abide the event. All findings of fact are reversed and conclusions of law disapproved. After the action was commenced and partly tried the appealing defendants were brought into the action by orders as parties defendant. They were not parties to the stipulation of settlement upon which the decision was made and judgment entered. Notwithstanding the fact that they have never been afforded an opportunity of presenting evidence in the action, affirmative relief has been granted against them. Before the new trial is had all the parties whose rights are affected by the action should be made parties and afforded an opportunity to be heard. Lazansky, P. J., Carswell, Johnson, Adel and Close, JJ., concur.