Hopkins v. Hawkins

Headnote

Beal property — easements — right of way — action to compel specific performance of alleged option to purchase.

Hopkins v. Hawkins, 211 App. Div. 833 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 5, 1924, unanimously affirming a judgment in favor of defendants, entered upon an order of Special Term granting a motion to dismiss the complaint on the ground that it failed to state a cause of action. The complaint demanded specific performance of the following provision in a deed theretofore executed by defendants Hawkins to the plaintiff. “ Said second parties are to have the first privilege and option of purchasing said five foot strip of land from said first parties, their hens and assigns for the sum of Five hundred ($500.00) Dollars and such sale of said five foot strip shall extinguish said easement on the part of said first parties, their heirs, executors and assigns.” The strip therein referred to in connection with an adjoining strip of the land conveyed to plaintiffs was used as a common driveway by the parties and as a way to property in the rear owned by the said Hawkins. Subsequently they conveyed said rear property to defendant Seeley together with the said right of way thereto and

plaintiffs by this action seek to exercise their option and terminate said right of way.