Gersten v. Weinberg

233 A.D. 885

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1931
• Status: Published

Opinion

The judgment against the defendant Emanuel Weinberg is reversed on the law and the facts, with costs, and the complaint against him is dismissed, with costs. Judgment against the other defendants modified, as follows: So much thereof as adopts and approves the decision, findings and conclusions of law of the referee which are hereinafter reversed and disapproved, is reversed. The judgment is reversed in so far as it provides, “ Ordered, Adjudged and Decreed, that the defendants Fannie Weinberg, Emanuel Weinberg and Charles Wagner be and each of them is and all of them are hereby directed to forthwith remove all structures and obstructions erected or placed by them or with the consent of any of them from all parts of the rear of the plaintiffs’ said store, and between such rear and the driveway mentioned in the aforesaid lease and agreement and in the decision, findings and conclusions,” and the judgment as so modified is affirmed, without costs. The following findings of fact are reversed: 6 and 14. The second conclusion of law is disapproved in so far as it applies to the interference with plaintiffs’ air and light. The third conclusion of law is disapproved. Plaintiffs are entitled to injunctive relief to prevent interference with the use of the right of way leased to them, but not for curtailment of light and air. They are not entitled to judgment requiring the demolition of the new structure. All concur, except Rhodes, J., who concurs for reversal as to Emanuel Weinberg and dissents and votes for affirmance as to the other defendants upon the authority of Doyle v. Lord (64 N. Y. 432). The order may be settled on notice before Hill, J., at Norwich, N. Y.