Rose v. Indian Park Ass'n, Inc.

Decision Date11 March 1957
Citation160 N.Y.S.2d 353,3 A.D.2d 274
PartiesJay ROSE, Respondent, v. INDIAN PARK ASSOCIATION, Inc., Appellant.
CourtNew York Supreme Court — Appellate Division

Charles Lichtenstein and Sidney I. Laitman, New York City, for appellant.

Jacob M. Kornfeld, New York City, for respondent.


WENZEL, Acting Presiding Justice.

This action was brought pursuant to article 15 of the Real Property Law to determine conflicting claims of the parties with respect to a small gore of land which abuts respondent's plat in a development at Greenwood Lake in the Town of Warwick, Orange County. The fee of the disputed gore is owned by appellant and the dispute is whether respondent has an easement to use that land. Respondent's claim is based on the deeds in his chain of title, beginning with the deeds from the developers to the first owners of his lots, all of which deeds described his lots any reference to development maps, and on a certain written declaration of easement which was executed by one of the developers.

Three separate development maps of the section of the development in which respondent's three lots are located were made, each at a different time. The original grantees of the three lots acquired two of the lots by two deeds dated August 22, 1929, and the third by deed dated May 15, 1931. One of the 1929 deeds was by Amsterdam Development and Sales Company, hereinafter referred to as Amsterdam, the owner of the entire tract, and the other by Malverne Building Company, Inc., hereinafter referred to as Malverne, the predecessor of Amsterdam as owner. Each of these 1929 deeds conveyed to the grantees lots 1 and 2 as shown on a map entitled 'Map of Greenwood Lake Terrace Section 1' made May 15, 1929.

This map delineated a road running generally north and south, which has been identified as 'Brook Mountain Trail', with its southerly terminus at a State highway running northeasterly and southwesterly, and another road, designated as 'Lake Trail', running generally northeasterly from a point on the easterly side of Brook Mountain Trail, closely parallel to the said State highway, which point was shown to be some 150 feet north of the highway. Lot 1 was shown to run from the southerly side of Lake Trail to the northerly side of the highway, with its westerly boundary line also constituting the easterly side of Brook Mountain Trail for about 100 feet immediately south of Lake Trail. From the latter point on the westerly boundary of lot 1, that is, about 100 feet south of Lake Trail, the line showing that boundary does not continue in its generally southerly direction, but runs southeasterly 54 feet to the highway. No other line appeared on the map to mark out any different boundary for the easterly side of Brook Mountain Trail opposite this southerly part of the westerly side of lot 1. Lot 2 was shown to be contiguous to the easterly boundary of lot 1. Lot 3, which was not included in these two 1929 deeds, was also shown on this map as being contiguous to the easterly line of lot 2, and both lots 2 and 3 were shown to extend, as does lot 1, from Lake Trail to the State highway.

The disputed gore may be described as bounded on one side by the said line of the most southerly 54 feet of the westerly side of lot 1; on a second side, by a line projected southerly from the said point on the westerly side of lot 1, 54 feet north of the State highway, and running to the highway, and on the third side by the northwesterly line of the highway.

The 1931 deed was by Malverne, Amsterdam having in the meantime reconveyed to Malverne the entire tract less what had been sold to others. This deed, conveying lot 3 to the same original grantees of lots 1 and 2, did not refer to the above-mentioned map but to a map which had been made in 1930 and which was entitled 'Revised Map of Greenwood Lake Terrace Sec. 1'. The third map was dated October 21, 1929, later than the time of the execution of the said deeds to lots 1 and 2. It of course was not mentioned in those deeds, and also was not mentioned in the 1931 deed. All the mesne deeds by which title was conveyed to respondent described lots 1 and 2 by reference to the May, 1929 map and lot 3 by reference to the 1930 map.

There are no differences amongst the three maps so far as layout of the lots and roads is concerned, except as to remote parts, and except that, whereas the two 1929 maps set out dimensions for lots 1 and 2, the 1930 map omits dimensions for those lots and some others, and the 1930 map also omits a dividing line between lots 1 and 2 and has the word 'Out' in the space representing those lots instead of their lot numbers. In addition, the 1930 map contains a statement to the effect that it supersedes the October, 1929 map.

In 1943 Malverne, still the owner of the roads in the development, executed and caused to be recorded a declaration which stated that it grants an easement for ingress and egress 'over all the strips of land lying in the bed of any street, road, evenue, trail or highway, opened or proposed, as shown on' the 1930 map and certain other maps not here pertinent, to 'all persons and corporations who are now or may hereafter become the owners, mortgagees, or lienors of partions of the premises heretofore owned or now owned by' Malverne 'as shown and designated on' the said maps. The document further states that it is understood that the easements 'shall pass to any and every owner of premises abutting on said respective rights of way or any continuations of the same' and that the 'said respective rights of way are created for the benefit of such abutting owners', but that 'nothing herein contained * * * shall be considered to be a declaration of said rights of way or any of them to the use of any other...

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9 cases
  • O'Hara v. Wallace
    • United States
    • New York Supreme Court
    • July 8, 1975
    ...of the map of Corneille Estates (see In re Northern Boulevard, City of New York, 258 N.Y. 136, 179 N.E. 321; Rose v. Indian Park Association, 3 A.D.2d 274, 160 N.Y.S.2d 353), he contends that his adverse possession has extinguished plaintiffs' easement rights. The plaintiffs concede that, b......
  • Sterrer v. Genoa
    • United States
    • New York Supreme Court
    • September 11, 1970
    ...N.Y. 725, 112 N.E.2d 846; Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13, 133 N.E.2d 505; Rose v. Indian Park Ass'n, Inc., 3 A.D.2d 274, 160 N.Y.S.2d 353; 3 Powell, Real Property, par. 409). However, while aware of the legal distinction, the court equated this easement B......
  • Fischer v. Liebman
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1988
    ...of that lot with reference to the filed subdivision map of the Suffolk, Nassau and Queens Realty Company ( see, Rose v. Indian Park Assn., 3 A.D.2d 274, 160 N.Y.S.2d 353). Although the intention of the grantor is to be determined in light of all the circumstances, the most important indicat......
  • Gerbig v. Zumpano
    • United States
    • New York Supreme Court
    • February 25, 1958
    ...affirmed 305 N.Y. 725, 112 N.E.2d 846; Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13; Rose v. Indian Park Association, Inc., 3 App.Div.2d 274, 160 N.Y.S.2d 353; 3 Powell on Real Property, sec. 409). But we are reminded by Chief Judge Cardozo that this implication is a m......
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