Bowler v. Apex Builders, Inc.

259 A.D. 834, 19 N.Y.S.2d 501, 1940 N.Y. App. Div. LEXIS 6914

Opinion

Action for a mandatory injunction for the removal of certain obstructions upon a right of way created by a declaration of easement. Judgment which, among other things, decrees that appellants and others have abandoned any and all rights which they possessed in and to certain easements granted by a declaration of easement in writing, reversed on the law and a new trial granted, with costs to appellants, to be paid by the plaintiffs, to abide the event. All findings of fact are reversed and conclusions of law disapproved. After the action was commenced and partly tried the appealing defendants were brought into the action by orders as parties defendant. They were not parties to the stipulation of settlement upon which the decision was made and judgment entered. Notwithstanding the fact that they have never been afforded an opportunity of presenting evidence in the action, affirmative relief has been granted against them. Before the new trial is had all the parties whose rights are affected by the action should be made parties and afforded an opportunity to be heard. Lazansky, P. J., Carswell, Johnson, Adel and Close, JJ., concur.