Brokaw v. Fairchild

• Decision Date: 09 June 1931
• Parties: George T. BROKAW, Appellant and Respondent, v. Elvira J. FAIRCHILD et al., Defendants. Margot McN. Fairchild et al., Appellants and Respondents, and Howard C. Brokaw et al., Respondents and Appellants.
• Court: New York Court of Appeals Court of Appeals

256 N.Y. 670

177 N.E. 186

George T. BROKAW, Appellant and Respondent,

v.Elvira J. FAIRCHILD et al., Defendants. Margot McN. Fairchild et al., Appellants and Respondents, and Howard C. Brokaw et al., Respondents and Appellants.

Court of Appeals of New York.

June 9, 1931.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (231 App. Div. 704, 245 N. Y. S. 402), entered November 29, 1930, affirming, so far as appealed from, a judgment of Special Term, in an action brought by plaintiff, a life tenant of certain real property, to obtain a declaratory judgment as to his right to demolish a dwelling house thereon and substitute an apartment house in its place. The trial court dismissed the complaint, holding as a matter of law that the removing of the present building and erection of the proposed structure would constitute waste, though not in violation of the general testamentary scheme in other respects.

Harry J. Ahlheim, Ambrose G. Todd, and Alexander S. Rowland, all of New York City, for plaintiff, appellant, and respondent.

John J. Curtin and Wesley S. Sawyer, both of New York City, for appellants and respondents Margot McN. Fairchild and others.

Joseph N. Tuttle, of New York City, for appellant and respondent Ann C. Brokaw.

Yorke Allen, of New York City, for respondents and appellants Howard C. Brokaw and others.

George S. Mittendorf, of New York City, for respondent and appellant Farmers' Loan & Trust Co.

PER CURIAM.

Judgment affirmed, without costs.

CARDOZO, C. J., and POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN, and HUBBS, JJ., concur.