Opinion
December, 1911.
Wendell P. McKown, for plaintiffs.
Delany St. John, for defendant.
Plaintiffs ask an injunction restraining defendant from continuing an encroachment by defendant upon plaintiffs' property, or, in the alternative, damages suffered by plaintiffs by reason thereof. The property in question, belonging to the plaintiffs, consists of an unimproved lot, 25 feet by 100 in size, known as No. 14 West Sixty-fourth street, Manhattan borough, in this city. A survey, offered in evidence by plaintiffs, shows that the building erected by defendant in 1895, on the adjoining lot in West Sixty-fourth street, encroaches upon plaintiffs' land one and one-half to two and three-quarters inches at the ground level and gradually increases to an encroachment of four to nine and one-half inches at the top of the building. The defendant proved that these conditions have been unchanged since 1904. Defendant moves for a dismissal of the complaint on the ground that, the encroachment having existed for more than two years, this action is prohibited by section 1499 of the Code of Civil Procedure. This statute applies only where the abutting owners of both pieces of land have built buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the dividing boundary. Bergman v. Klein, 97 A.D. 15, 17; Volz v. Steiner, 67 id. 511, 512. The motion to dismiss must, therefore, be denied. In view of the fact that plaintiffs suffered the erection of defendant's building without objection and has allowed it to stand unquestioned for many years, the court will refuse a mandatory injunction. See Knoth v. Manhattan R. Co., 187 N.Y. 243, 251-253; Bremer v. Manhattan R. Co., 191 N.Y. 334, 341; McClure v. Leaycraft, 183 id. 34, 44. A court of equity may take possession and finally end such a controversy by securing the payment of adequate compensation in lieu of a cessation of the trespass. New York City v. Dine, 185 U.S. 93-103, 108; Crocker v. Manhattan Life Ins. Co., 61 A.D. 226, 231; Amerman v. Deane, 132 N.Y. 355, 361; Bates v. Holbrook, 67 A.D. 25, 36; affd., 171 N.Y. 461, 471. The measure of damages is the difference between the value of the plaintiffs' property with and without the encroachment. Crocker v. Manhattan Life Ins. Co., 61 A.D. 226; Amerman v. Deane, 132 N.Y. 355. The evidence introduced by plaintiffs tends to show a damage of $4,500 to plaintiffs by reason of this encroachment. Defendant introduced no evidence on this point. This estimate of plaintiffs' expert witness, as modified by cross-examination, seems very excessive, and I deem it necessary that further proof should be presented as to the extent of damage suffered by plaintiffs. I will, therefore, receive additional proof on that point, or, if counsel prefer, send the matter to a referee to hear and report thereon.
Ordered accordingly.