Yager Pontiac, Inc. v. Fred A. Danker & Sons, Inc.

• Citation: 69 Misc.2d 546,330 N.Y.S.2d 409
• Parties: YAGER PONTIAC, INC., Plaintiff, v. FRED A. DANKER AND SONS, INC., et al., Defendants.
• Decision Date: 24 January 1972
• Court: United States State Supreme Court (New York)

Page 409

330 N.Y.S.2d 409

69 Misc.2d 546

YAGER PONTIAC, INC., Plaintiff, v. FRED A. DANKER AND SONS, INC., et al., Defendants.

Supreme Court, Albany County.

Jan. 24, 1972.

DeGraff, Foy, Conway & Holt-Harris, Albany (Carroll J. Mealey, Albany, of counsel), for plaintiff.

Francis H. Trombly, Albany, for defendants.

GEORGE L. COBB, Justice.

The plaintiff is the owner of a parcel of land located on the southerly side of Central Avenue, in the City of Albany, which it uses for the sale of used automobiles. The plaintiff purchased this property from the defendants Robert K. Danker, Frederick A. Danker, Jr., Elizabeth N. Danker and David H. Danker, these defendants having acquired title to the premises from their father, Frederick A. Danker, Sr., and Lotta K. Danker, his wife. The defendant Fred A. Danker and Sons, Inc. is the owner of land located on the southerly side of Central Avenue which adjoins plaintiff's premises on the east.

In this action the plaintiff seeks a judgment declaring that it has a perpetual easement and right of way over the lands owned by the defendant Fred A. Danker and Sons, Inc. and it seeks to recover damages resulting from the obstruction of its alleged easement by the construction of a building thereon.

The easement which the plaintiff seeks to establish is over a strip of land running along plaintiff's easterly boundary line, bounded on the north by Central Avenue and on the south by Roseland Street, having a width of 60 feet and a depth of over 500 feet.

The complaint has been dismissed agaisnt the defendant Mechanics and Farmers Bank of Albany, as Executor under the Last Wills and Testaments of Frederick A. Danker, Sr. and Lotta K. Danker. On motion of the remaining defendants, the complaint was dismissed as to them and summary judgment granted in their favor, which judgment was reversed and the motion for summary judgment denied by the Appellate Division, Third Department (Yager Pontiac v. Danker & Sons, 28 A.D.2d 61, 281 N.Y.S.2d 187).

At the trial of this action by the court there was testimony by Murl H. Yager, the president of the plaintiff corporation and its sole stockholder, that on November 12, 1948 the plaintiff entered into a written contract with the individual defendants Danker to purchase for the sum of $45,000 the property which it now uses for the sale of used automobiles; that by the contract the sellers agreed to convey a parcel of land on the southerly side of Central Avenue having a depth of 500 feet and a frontage on Central Avenue of 313.71 feet; that the contract provided for closing of title on December 28, 1948; that the closing was not completed on December 28, 1948 because Mr. Yager refused to accept title for the reason that the deed presented to him described a parcel of land having 300 feet frontage on Central Avenue, rather than 313.71 feet as specified in the contract; that the closing of title was rescheduled for the afternoon of December 31, 1948, at which time the plaintiff accepted title and paid the agreed consideration and received two deeds, one from Frederick A. Danker, Sr. and Lotta K. Danker, his wife, to the individual defendants Danker, bearing date February 2, 1948, and the other from the individual defendants Danker to the plaintiff, bearing date December 31, 1948, both deeds containing identical descriptions of a parcel of land having a frontage on Central Avenue of 300 feet, and the plaintiff also received at that time, in addition to the deeds, a letter dated December 31, 1948 from Frederick A. Danker, Sr. to the plaintiff, which letter states as follows:

'776 Central Avenue,

Albany, New York,

December 31, 1948.

'Yager Pontiac, Inc.

470 Central Avenue,

Albany, New York.

'Attention: M. H. Yager, President.

'Dear Mr. Yager:

'This will advise you that for and in consideration of acceptance of a deed from my children, of a 300 foot plot of land situate on the southerly side of Central Avenue, conveyance made as of this date,--Mrs. Danker and I will join in a deed to the City of Albany of a strip of land of not less than sixty feet in width, to run easterly from the easterly line of the property which was conveyed to you today as aforesaid, to Roseland Street, which strip of land shall be used solely for street opening purposes.

'We further agree in consideration of the foregoing, to later enter into any arrangement which you and we mutually find agreeable for the formal opening and dedication of such street.

'In the meantime, you may rely upon this letter as binding us, and our successors in title, so that you and your corporation may proceed with any plans which may be based upon the opening of such street at such time in the future as conditions may warrant.

'Pending acceptance by the City of Albany of the intended conveyance of land for street purposes as hereinbefore recited, we do hereby bind ourselves, our heirs at law, next of kin, or successors in title to set aside a strip of land in perpetuity for mutual use for street purposes, and either of us may use it for such purpose at any time beginning immediately.

'Herin I act as agent for Mrs. Danker.

'Simultaneously, Fitzsimmons and Wilsey are taking up with the Office of the Corporation Counsel the matter of taking such steps as may be necessary to effectuate the plan herein outlined.

'Very truly yours,

'Fred A. Danker

Frederick A. Danker.

'Witness:

W. E. Fitzsimmons.

'Confirmed:

Fitzsimmons & Wilsey

By: W. E. Fitzsimmons.'

The plaintiff relies on this letter for the existence of its claimed easement. The letter meets the requirements of section 243 of the Real Property Law.

This letter was received in evidence at the trial subject to the motion of defendants' attorney to strike it from evidence on the grounds that a proper foundation was not laid for its introduction into evidence and that it constituted a personal transaction with Frederick A. Danker, Sr., who is deceased, and, as such, was inadmissible under CPLR 4519. The court reserved decision on this motion. Since the authenticity of the letter was not in dispute, the defendants having admitted that it was signed by said Frederick A. Danker, Sr., and since the letter itself did not constitute testimony that would be barred by CPLR 4519 (Matter of Seaman, 275 App.Div. 484, 491, 90 N.Y.S.2d 336, 342, affd. 300 N.Y. 756, 92 N.E.2d 460), it was properly received in evidence. Accordingly, the motion is denied.

It appears that the description contained in the deed received by the plaintiff from the Danker children makes reference to an unopened street 'now unofficially known as Van Buren Avenue, connecting Central Avenue and Roseland Street' located along the easterly line of plaintiff's premises. In addition, two maps were received in evidence one dated January 31, 1949 (plaintiff's exhibit 5) and the other dated April 4, 1955 (defendants' exhibit A), both of which show Van Buren Avenue as a proposed street 60 feet in width running along the easterly boundary line of plaintiff's premises. It is undisputed, however, that the City of Albany never accepted the proposed street which was referred to in the letter of December 31, 1948 and which appears to have been privately designated as Van Buren Avenue.

On December 31, 1948, the date of the aforesaid letter, Frederick A. Danker, Sr. was the owner of the property adjoining plaintiff's premises on the east, over which plaintiff claims the easement. Frederick A. Danker, Sr. and Lotta K. Danker, his wife, conveyed this property to the defendant Fred A. Danker and Sons, Inc. by a warranty deed dated December 29, 1956 and recorded on February 21, 1957, which deed was not made subject to an easement and contained no reference to an easement. Frederick A. Danker, Sr. died on June 1, 1961, and his wife, Lotta K. Danker, who had only a dower interest in the premises conveyed to the corporate defendant, died on April 28, 1963.

In 1965, by a written lease dated February 25, 1965 and recorded on March 9, 1965, the defendant Fred A. Danker and Sons, Inc. leased to The National Toddle House Corporation, for a term of 25 years commencing April 1, 1965, a lot fronting 60 feet on Central Avenue and 200 feet deep, being a portion of the premises over which the plaintiff claims an easement, and the lessee thereafter erected on the leased parcel a building which it uses for restaurant purposes, with the result, as alleged by plaintiff, 'that the plaintiff has been totally excluded from and denied access to and use of the said easement'. It is not disputed that The National Toddle House Corporation entered into the lease without notice of the letter of December 31, 1948 under which plaintiff claims an easement.

The defendants contend that the letter of December 31, 1948 did not constitute the grant of an easement and that the 'use' contemplated by the instrument must be construed to be not more than a license. A license, however, is merely a personal privilege to enter upon the land of another to do some act or acts; it is distinct from ownership in land and does not imply an interest in land. (17 N.Y.Jur., Easements and Licenses, § 3; Nemmer Furniture Co. v. Select Furniture Co., 25 Misc.2d 895, 208 N.Y.S.2d 51.) A privilege or license 'sometimes loosely described as an 'easement in gross" (Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 304, 118 N.E.2d 444, 447) will not be presumed where it can fairly be construed to be appurtenant to land (Wilson v. Ford, 209 N.Y. 186, 196, 102 N.E. 614, 617). An easement is a right or privilege which one parcel of land yields up to another parcel of land as an easement appurtenant; it contemplates the existence of a dominant estate and a servient estate; it is a burden imposed on corporeal property and not upon the owner thereof. (Antonopulos v. Postal Tel. Cable Co., 261 App.Div. 564, 568, affd. 287 N.Y. 712.) It is a permanent right authorizing one landowner to do or maintain something on the adjoining land of another, which, although a...