Faerman v. Feely

243 A.D. 733

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1935
• Status: Published

Opinion

In action to restrain use of certain premises as a stable or riding academy, judgment modified by limiting the injunction to the concrete building which was used as a stable during the late summer and fall of 1933 without a permit from the city authorities, and to the use of the alleyway between said concrete building and plaintiff Faerman’s premises for the purpose of tying horses therein or of riding or leading horses from the premises of defendants, and as so modified, judgment affirmed, without costs. The findings of fact and the conclusion of law are modified accordingly. Lazansky, P. J., Hagarty and Davis, JJ., concur; Seudder and Tompkins, JJ., dissent and vote to reverse and to dismiss the complaint, with the following memorandum: The verdict of the jury on the submitted question was against the weight of the evidence and contrary to the probabilities of the case and common experience. We think the question of a permit is not in the case. The action is in equity and proof as to conditions at the time of the trial was competent. There is no claim or proof that at the time of the trial, or even at the time of the commencement of the action on November 21, 1933, the premises, or any part thereof, was being occupied without a permit or in violation of any city ordinance, and there is no such claim in the respondents’ brief. Settle order on notice.