Etkin v. Hyney
| Decision Date | 16 May 1969 |
| Citation | 299 N.Y.S.2d 862,32 A.D.2d 704 |
| Parties | Stella ETKIN, Appellant, v. Huldah M. HYNEY, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Jack Goodman, Albany, for appellant.
Frederick G. Bascom, Glens Falls, for respondent.
Appeal from a judgment in favor of defendant entered upon a decision rendered at a Trial Term of the Supreme Court in an action for a permanent injunction.
Defendant conveyed to plaintiff lands on the west shore of Lake George upon which plaintiff constructed a dwelling. Defendant retained title to lands adjoining on the north and south and to a small island reached by a footbridge. In her conveyance to plaintiff, the defendant restricted the use of her shore parcel on the south and that of the island to 'private residential uses only'; and later she constructed, on property other than these restricted lands, six dwellings, referred to as summer cottages. On the oral argument it appeared that these were substantial and fairly costly structures. Each was leased for the four-month summer season, the two as to which there was specific testimony for $2,800 and $2,500, respectively. The complaint sought so far as now material, to enjoin the construction of a road on the shore parcel to permit access by defendant's tenants to the lake, to enjoin such tenants' passage over the shore parcel and their use of the island for picnicking, swimming, boating and parking.
The testimony upon which this relief was sought related to the uses of the properties in 1966 and 1967 and, except for the innocuous testimony of one of defendant's lessees, was elicited entirely from plaintiff's husband. He said that in 1966 and 1967 The uncontradicted proof, in part documentary, was that none of defendant's leases conferred any rights to the uses complained of; that defendant extended the 'courtesy' of one or more of such uses to some of her friends and to one of her lessees in 1966 and to two of them in 1967, limiting permission to the 'ones that I cared to extend that courtesy to'.
In construing conveyances containing covenants running with the land, the...
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Ginsberg v. Yeshiva of Far Rockaway
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Bell v. Gitlitz
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...acted in good faith in compliance with the law. Under such circumstances, an injunction should not issue (Etkin v. Hyney, 32 A.D.2d 704, 705, 299 N.Y.S.2d 862, 864). Furthermore, we are of the view that a municipal ordinance imposing certain fence requirements should supercede a restrictive......