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

• Decision Date: 03 May 1973
• Citation: 41 A.D.2d 366,343 N.Y.S.2d 209
• Parties: YAGER PONTIAC, INC., Respondent, v. FRED A. DANKER AND SONS, INC., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 209

343 N.Y.S.2d 209

41 A.D.2d 366

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

Supreme Court, Appellate Division, Third Department.

May 3, 1973.

Francis H. Trombly and Edward J. Trombly, Albany, for appellants.

De Graff, Foy, Conway & Holt-Harris, Albany (Carroll J. Mealey, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and STALEY, GREENBLOTT, SWEENEY and KANE, JJ.

SWEENEY, Justice.

This is an appeal from a judgment of the Supreme Court in favor of plaintiff, 69 Misc.2d 546, 330 N.Y.S.2d 409, entered March 30, 1972 in Albany County, upon a decision of the court at a Trial Term, without a jury. An order granting summary judgment to defendants and dismissing the complaint was reversed on a previous appeal (28 A.D.2d 61, 281 N.Y.S.2d 187).

This appeal presents the issue of whether the trial court properly determined that a certain letter created an easement binding on appellants. In February of 1948 Fred A. Danker, Sr. and his wife (both since deceased) conveyed a parcel of land located on Central Avenue in the City of Albany to their four children, the individual appellants herein. On December 31, 1948 the four younger Dankers conveyed the same parcel to respondent.

On that same day Fred A. Danker, Sr., who still owned the land contiguous to the parcel conveyed to respondent, signed a letter which recited a promise to convey to the City of Albany a 60-foot strip of land running along the eastern edge of the parcel conveyed to respondent for street purposes. The fourth paragraph of the letter stated: '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.' In 1956 the contiguous parcel held by the elder Danker was conveyed to the corporate appellant. The strip was never dedicated to the city. Subsequently, in 1965 the corporate appellant leased a portion of the strip, whereupon the lessee constructed a restaurant thereon.

The trial court found that, by the language of the letter of December 31, 1948 quoted above, an easement was created. It further found that the knowledge of the elder Danker as grantor of the easement was imputed to the corporation of which he was president, director and stockholder, and that the corporation, therefore, took title to the property subject to the easement rights of respondent therein.

We reject appellants' argument that the letter was inadmissible under CPLR 4519. Although they concede that the signature of the elder Danker is authentic, appellants object to the admission of the letter because respondent was thereby permitted to place its interpretation upon the letter's ambiguous and obscure meaning. No testimony was admitted regarding any conduct, conversation or communication with the decedent. Nor was any testimony concerning an interpretation of the document allowed. We conclude that the admission of the letter was proper. (Matter of Callister, 153 N.Y....