City of New York v. Masten

Headnote

City of New York v. Masten, 174 App. Div. 661 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 22, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The defendant owned property on East Seventy-ninth street, New York city, in front of which was a high stoop. Thereafter he made alterations in his house which included the removal of the steps of the stoop and the substitution of an entrance at the sidewalk level. Underneath the stoop at .the level of the cellar floor was a space of about thirteen by five feet, inclosed by the stoop walls and roofed with a substantial brick arch, the highest part of which was about two feet eight inches below the sidewalk level. The stoop walls were cut off about eight inches below the sidewalk level, but the arch was not disturbed. The space between the walls above the arch was filled in and a concrete pathway extending from the sidewalk to the front door was laid over the' filling. In this action the city asked for a mandatory injunction requiring the defendant to fill in the space under the

stoop, which it claimed was a vault within the- meaning of the city ordinances, and had not been paid for. The court found that the space under the stoop was not a vault, and that the defendant was entitled to maintain the same until such time as the city should reclaim for public use the space within the stoop line throughout the block.