Opinion
March 12, 1952.
Appeal from Supreme Court, Sullivan County.
The controversy arises over the use of a strip of land between lots owned by the parties. While the physical locations of the lots, their conceded directional references to each other and the lands retained and not retained by the common grantor at the times of the conveyances from which the parties draw their titles, would seem to suggest a directional error with reference to the strip in dispute, the complaint does not plead a cause of action for reformation. It does, however, plead sufficiently a cause of action to establish plaintiff's right to use the land in issue by prescription. This becomes clear when the entire pleading is considered in the light of the locations and references of the lands of the parties to each other. The record sufficiently supports the finding of an easement by prescription, and the apparent errors in the deed descriptions in relation to actual physical conditions seem in aid of such a finding. We think the judgment on the merits and the injunctive relief granted should be affirmed. We do not, however, regard the case as sufficiently difficult or extraordinary to warrant an additional allowance of $500 costs. Appellant also objects on the argument to certain other items of costs and to certain disbursements as taxed. The judgment, as signed by the Judge July 30, 1951, referred to the "costs * * * as taxed", and was entered August 1, 1951. This appeal was taken on August 21st from that judgment. The record shows a motion based on affidavit for a retaxation of costs made August 18, 1951, and returnable at Special Term August 24, 1951. The order entered on that motion is not in this record; it is not embraced in the notice of appeal, and we cannot consider that question on this appeal. The judgment is modified on the facts and in the exercise of discretion by striking out the $500 additional allowance of costs, and as thus modified, affirmed, with costs. This determination is without prejudice to the rights, if any, which appellant may have under the motion returnable at Special Term on August 24, 1951. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.