Arnold v. Fee

• Decision Date: 14 January 1896
• Citation: 42 N.E. 588,148 N.Y. 214
• Parties: ARNOLD et al. v. FEE et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 214

42 N.E. 588

ARNOLD et al.

v.FEE et al.

Court of Appeals of New York.

Jan. 14, 1896.

Appeal from supreme court, general term, Fifth department.

Action by Allen J. Arnold and others against James Fee and another. From a judgment of the general term (34 N. Y. Supp. 1028) affirming a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

The complaint asks judgment, in substance, restraining the defendants from using a certain alley, except for the ingress and egress of themselves and persons having legitimate business with them, or the occupants of buildings upon the premises. From the allegations of the complaint, it appears that one Ulrich, owning a tract of land upon North avenue and Franklin street, in the city of Rochester conveyed to one Hahn a portion thereof fronting upon Franklin street, and which was bounded upon its northwesterly side by an alley leading from Franklin street to what were known as the ‘Palace Stables.’ The northwesterly boundary line extended along the alley for 98 feet. The deed of conveyance contained the grant of ‘the privilege of the main alley leading to the ‘Palace Stables,’ so called, as an easement for ingress and egress along the north line or alley line of the premises hereby deeded, for the distance of ninety-eight feet west from Franklin street, and no more, and for no other purpose.' About the time of this conveyance to Hahn, Ulrich conveyed the remainder of the tract to one Perry, subject to the easement mentioned. By various mesne conveyances, the premises described in the deed to Hahn have been conveyed to the defendants, and those described in the deed to Perry to the plaintiffs. At the time of the making of these deeds, a brick house stood upon the property conveyed to Hahn, some distance back from Franklin street, with its northwesterly wall upon the line of the alley. Upon the southerly line of the alley was a sidewalk, and a door opened from the house upon it. This sidewalk led to the Palace stables, and was also used by the occupants of the brick house for the purpose of ingress and egress to their premises. Subsequently, the defendants erected an addition to the house, so as to extend it to Franklin street, and the premises were used as a restaurant or beer garden. Later, the defendants built upon the rear thereof, professedly as an addition to the restaurant. The complaint then charges that the defendants changed the purposes for which the premises were used; that they intended to convert the same into a farmers' hotel, and to make of the structure added to the rear of the original building a barn or stable, for the accommodation of hotel customers; that the defendants claimed the right to use the whole of the alley for the ingress and egress of carriages and wagons to said barn or stable; and that such threatened use of the alley would damage the plaintiffs, who maintained upon their premises large and valuable buildings for the purpose of stabling horses and storing vehicles, and which their customers reach by passing along the alley from Franklin street. The defendants demurred to the complaint, for insufficiency of facts to constitute a cause of action, and the demurrer was sustained at special term. Upon appeal by the plaintiffs to the general term, the interloctuory judgment entered in favor of the defendants was affirmed. The plaintiffs now appeal to this court, the general term having certified the case to be one of sufficient importance to render a decision by us desirable.

William F. Cogswell, for appellants.

John H. Hopkins, for respondents.

GRAY, J. (after stating the facts).

The dispute between the plaintiffs and the defendants is over the true construction which is to be given to the language of the grant in the deed to Hahn, the defendants' predecessor in title, whereby an easement in the alleyway was reserved to the grantee....