Pagano v. Kramer — 21 N.Y.2d 910

Majority

p. 910

Rosario Pagano et al., Respondents, v. Abram Kramer et al., Appellants.

Argued February 19, 1968;

decided April 3, 1968.

p. 911

Sylvan D. Freeman and Samuel Kirschenbaum for appellants.

C. Benedict Mauro for respondents.

In this action to establish a private easement to a 4-foot strip of land adjacent to plaintiffs’ property and to enjoin defendants from interfering with the easement, we agree with the Appellate Division that plaintiffs obtained an easement by prescription. Appellants contend that the foreclosure sale for unpaid taxes extinguished the easement since the tax levy predated any prescriptive easement which plaintiffs might have established. Assuming this to be so, nevertheless, the tax deed from the city to appellant Kramer explicitly stated that the conveyance of the property was “ subject to a private Right-of-Way easement”. While this language could not create any easement, it did preserve plaintiffs’ easement by

p. 912

prescription which might otherwise have been extinguished by the tax foreclosure sale.

The order should be affirmed, with costs.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating, Breitel and Jasen concur.

Order affirmed.