Erit Realty Corp. v. Sea Gate Ass'n

Decision Date19 July 1928
Citation162 N.E. 581,249 N.Y. 52
CourtNew York Court of Appeals Court of Appeals


Action by the Erit Realty Corporation against the Sea Gate Association. Judgment for plaintiff was reversed on the law and facts (223 App. Div. 768, 227 N. Y. S. 600), and plaintiff appeals.


Appeal from Supreme Court, Appellate Division, Second department.

I. Maurice Wormser, Charles Eno, and Harry L. Kreeger, all of New York City, for appellant.

Meier Steinbrink and Harold M. Kennedy, both of Brooklyn, for respondent.


The plaintiff is the owner of block 34 and the north half of block 35 in a tract of land known as Sea Gate. The tract comprises all the land on Coney Island point, or Norton's point, which constitutes the extreme westerly end of Coney Island. West Thirty-Seventh street, a public street extending from Gravesend Bay on the north to the ocean on the south, bounds the tract on the east; Gravesend Bay on the north; the Atlantic ocean on the west and south. The inner part of the tract is traversed from north to south by two laid-out private streets; it is crossed from east to west by ten such streets. Beyond, to the west, is the private street, Surf avenue, which, following the curve of the ocean beach, circles to the west and north from West Thirty-Seventh street. The streets crossing from east to west empty into Surf avenue on the west and into Thirty-Seventh street on the east. Beyond Surf avenue, to the west and south, are other short private streets, which give access to the ocean beach encircling the point. The intersecting streets create rectangular blocks of land, 42 in number, which have been subdivided into building lots, numbering as many as 60 to a block. Block 34, owned by the plaintiff, is at the extreme northeast corner of the tract. Block 35, the north half of which belongs to the plaintiff, is immediately south of it. These two blocks are bounded on the east by West Thirty-Seventh street, and on the west by Sea Gate avenue. All the streets to which we have referred, except West Thirty-Seventh street, are private streets or ways. Many houses have been erected upon the various lots in the numerous blocks of the tract, and are occupied as homes by many families. That Sea Gate forms an exclusively residential district of a high type is unquestioned.

The defendant owns title to all the private streets in Sea Gate. It owns the ocean beach and many of the building lots in the tract. For the use of residents, it long ago laid down sewers, water mains and gas mains in the streets. It provides the people of Sea Gate with water, gas, and light. It has improved and maintained the roadways, and built and maintained sidewalks. Long ago it became necessary for the defendant, in order that the residents of Sea Gate might be secure in the enjoyment of their property rights, to maintain a high fence, running along the westerly border of Thirty-Seventh street, or the easterly border of Sea Gate, from Gravesend Bay on the north to the ocean on the south. Recently the plaintiff, for some reason manifestly opposed to its self-interest as a proprietor of residential property, objected to the fence. Thereupon the defendant removed that section of the fence which bounded block 34 and the north half of block 35 upon the east. In other words, the line of fence coming north from the ocean was stopped at the center line of block 35. It also erected a barrier across Sea Gate avenue, which borders the two blocks on the west, at the same center line. It also erected a barrier across Poplar avenue, which divides the two blocks, at a point on its westerly side where it intersects Sea Gate avenue. Thus the plaintiff, in its enjoyment of block 34 and the north half of block 35, was given uninterrupted access to the public street, Thirity-Seventh street, but denied access to all the private streets of Sea Gate, except where such streets actually touched its properties.

The Norton Point Land Company, organized in 1892, shortly afterward acquired the Sea Gate tract. It caused the tract to be surveyed and plotted on a map. This map was filed in the office of the clerk of Kings county on June 16, 1897. The map accurately portrays the property as presently laid out in streets, blocks, and building lots. On the 31st day of August, 1898, the Norton Point Land Company deeded, among other lots, block 34 and the north half of block 35 to Theodore S. Jenkins, from whom, by mesne conveyance, the plaintiff derives title. The description of the property conveyed was by their block numbers as shown upon the filed map, to which reference was expressly made. Later, in the year 1901, the Norton Point Land Company deeded to this defendant all its interest in the streets, in the beach, and in various lots not then sold.

When the Norton Point Land Company acquired the tract, shortly after the year 1892, it immediately began to fill and grade the land. This work was begun in 1895 or 1896 by Theodore S. Jenkins, the grantee from whom the plaintiff derives title. The easterly part of the property, as far south as Mermaid avenue, was filled to a depth of 6 or 8 feet above the strip of land which now constitutes West Thirty-Seventh street. An embankment, 6 or 8 feet high, was constructed along the line of the fill. Mermaid avenue intersects the easterly line of the tract at a point distant from Gravesend Bay about two-thirds of the length of the line. At this point the fill and embankment began to lower to the level of the strip of land now constituting West Thirty-Seventh street. From there to the ocean on the south a high picket fence was erected. At Surf avenue a gate was set up. The embankment and the fence cut off all access to the tract from the east except through the gate. A guard was stationed at the gate, who admitted to the tract, with some exceptions, only those persons having property rights therein.

It clearly appears that the embankment was built and the fence installed before the summer of the year 1897. Thus the witness Mann, who was president of the Norton Point Land Company in the year 1896, and who was summoned to testify by the plaintiff, was asked: ‘When was the fence erected, to the best of your recollection, on the easterly boundary of this tract?’ And he answered: ‘I should say it was in the spring of 1897.’ This testimony was corroborated by other witnesses and not...

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9 cases
  • Fischer v. Liebman
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1988
    ...Easements, § 62, citing Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13, 133 N.E.2d 505; Erit Realty Corp. v. Sea Gate Assn., 249 N.Y. 52, 162 N.E. 581). At bar, the Supreme Court properly found that the original grantor intended to grant an easement over Lot Avenue for t......
  • Seagate Mini Mall, Inc. v. Seagate Ass'n, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • January 12, 2022 an easement benefitting other property owners in Sea Gate, which easement had not been extinguished (see Erit Realty Corp. v. Sea Gate Assn., 249 N.Y. 52, 54, 162 N.E. 581 ; Drabinsky v. Sea gate Assn., 239 N.Y. 321, 325–328, 146 N.E. 614 ; Nassau Point Prop. Owners Assn., Inc. v. Tirado......
  • Sea Gate Ass'n v. Fleischer
    • United States
    • New York Supreme Court
    • December 21, 1960
    ...Sea Gate Association v. Sea Gate Tenants Association, 2d Dept. 1939, 256 App.Div. 959, 11 N.Y.S.2d 232; Erit Realty Corp. v. Sea Gate Association, 1928, 249 N.Y. 52, 162 N.E. 581; Tenenbaum v. Sea Gate Association, 2d Dept. 1938, 253 App.Div. 166, 1 N.Y.S.2d 224; Sea Gate Association v. Sex......
  • Erit Realty Corp. v. Sea Gate Ass'n
    • United States
    • New York Court of Appeals Court of Appeals
    • July 19, 1932 maintain the barrier with entrance gate and guard, and reasonably to regulate admission, was determined in Erit Realty Corp. v. Sea Gate Ass'n, 249 N. Y. 52, 162 N. E. 581;Id., 249 N. Y. 417, 164 N. E. 336;Id., 253 N. Y. 522, 171 N. E. 765. Whether there was any easement in the streets o......
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