Stolts v. Tuska — 83 A.D. 426

Majority

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Julius W. Stolts, as President of J. & J. W. Stolts, an Association Organized and Existing under and by Virtue of the Laws of the State of New York, Appellant, v. Morris Tuska and Others, Defendants. Julia Tuska and Irving M. Tuska, as Administrator of Morris Tuska, Deceased, Respondents.

Headnote

Action to enjoin interference with a right to use a dock given by a lease to the plain tiff— the grantee, but not the administratrix, of the deceased landlord may be joined as a party defendant with lessees of the dock, all the leases expiring on the same day.

Morris Tuska leased a portion of a tract of land owned by him to one Stolts, together with a right of access to, and the privilege of using, a dock located on the remaining premises. Thereafter Tuska leased the remainder of the tract to parties named Jackson and Wright, making no reference to the easements conferred on Stolts. Tuska and Jackson and Wright having disputed Stolts’ right of way and his privilege of using the dock, Stolts brought an action against them to establish, locate and define his right of way and his right to use the dock, and to enjoin the defendants from interfering therewith.

Tuska died during the pendency of the action, after having conveyed all of the demised premises to his wife. The leases of the premises all expired on" the same day.

Held, that, as no damages were demanded against Tuska, and his personal estate could not be affected by the judgment, the plaintiff was not entitled to bring in his administratrix as a party defendant;

That the plaintiff was entitled to have Tuska’s grantee made a party defendant, in order that he might be protected against the contingency of the leases to Jackson and Wright being terminated prior to the expiration of the term mentioned in such leases, as, in that event, the judgment would not be binding on Tuska’s grantee, who did not derive her rights under the tenants. .

Appeal by the plaintiff, Julius W. Stolts, as president of J. & J. W. Stolts, an association organized and existing under and by virtue of the laws of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1903, denying the plaintiff’s motion to make parties defendant herein the grantee and administrator of Morris Tuska, deceased.

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Charles M. Demond, for the appellant.

Benjamin Tuska, for the respondents.

When this action was commenced Morris Tuska, since deceased, owned a tract of land fronting on the East river extending from One Hundred and Fifth to One Hundred and Sixth streets. He had leased a strip oft the westerly side to the plaintiff, together with a right of access to and use of the dock on the remaining premises. After the lease to the plaintiff had been made and recorded his landlord leased the southerly half of the premises lying between those leased to the plaintiff and the river to the defendant Jackson, and thereafter leased the northerly half to the defendant Wright, making no reference to the reservation of the plaintiff’s easements. The plaintiff asserted under his lease a right of way over the premises subsequently leased to Jackson and Wright to and from the dock and a right to use the dock. The right of way had been disputed by Tuska before making the other leases and was afterwards denied by him and his subsequent tenants, and they also denied plaintiff’s right to use the dock. This action was brought against the landlord and his subsequent tenants to establish, locate and ■define plaintiff’s right of way and right to use the dock and to enjoin the defendants from obstructing him in using the right of way and ■dock.

Ho damages are demanded against Tuska, and his personal estate cannot be affected by the judgment. The motion to bring in his administrator was, therefore, properly denied.

Tuska, shortly before his death, conveyed all the premises to Julia Tuska, his wife. The leases, which are for long periods, all expire at the same time, and hence it is contended that the judgment will operate only upon the leasehold estates, and that Tuska’s grantee is neither a necessary or proper party. The leases of the defendants may be surrendered, canceled or otherwise terminated before the expiration of the period specified. In that event a judgment establishing or defining plaintiff’s rights either as to the right of way or to the use of the dock would not be binding upon Mrs. Tuska, since she does not derive her rights through the tenants. Consequently she is a proper party. The rights of the plaintiff under his

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lease should be finally adjusted as to all parties in interest, and to that end Julia Tuska should have been brought in.

It follows that the order should be modified by granting the plaintiff’s motion for leave to serve a supplemental summons and complaint making Julia Tuska a party defendant, and as thus modified affirmed, without costs.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order modified as stated in opinion, and as modified affirmed,’ without costs.