Riker Operating Co. v. Martinique Restaurant, Inc.

Majority

p. 487

Riker Operating Co., Inc., Appellant, v. Martinique Restaurant, Inc., Respondent.

First Department,

July 2, 1943.

p. 488

Max Schmer of counsel (Raphael II. Rhodes with him on the brief; Schmer, Shapiro & Wechsler, attorneys), for appellant.

I. Arnold Eimber of counsel (Jacob Gerstein, attorney), for respondent.

As defendant’s canopy, erected adjacent to plaintiff’s property and extending over the sidewalk from the building line to the curb, interferes with plaintiff’s easement of light and obstructs the view of plaintiff’s restaurant from prospective customers, we think that upon the evidence plaintiff is entitled to injunctive relief directing its removal except between the hours of nine p. m. and four a. m. (Brown-Brand Realty Co., Inc., v. Saks & Co., 126 Misc. 336 [opinion by O’Malley, J.], affd. 218 App. Div. 827 .)

The judgment should be reversed, with costs, and a judgment entered decreeing the removal of the canopy during the hours indicated.

Townley, TJntermyeb, Cohn and Callahan, JJ., concur; Martin, P. J., concurs in result.

Judgment unanimously reversed, with costs, and judgment directed to be entered decreeing the removal of the canopy during the hours indicated in opinion. Settle order on notice.

Cases cited

Brown-Brand Realty Co. v. Saks & Co. 126 Misc. 336 N.Y. Sup. Ct. p. 488