Johnson v. Dunbar

282 A.D. 720, 122 N.Y.S.2d 222, 1953 N.Y. App. Div. LEXIS 4788

Opinion

In an action for judgment declaring an easement to property situated without the State, order dismissing the complaint affirmed, with $10 costs and disbursements, Section 536 of the Real Property Law does not govern an action for damages with respect to real property admittedly not owned by the plaintiff but as to which he merely asserts that he has an implied easement of access. To retain jurisdiction of such an action would be tantamount to making an adjudication with respect to title of land without the State. Carswell, Adel, Wenzel and Beldoek, JJ., concur; Nolan, P. J., dissents and votes to reverse the order and to deny the motion to dismiss the complaint, with the following memorandum: In my opinion, the third cause of action is one contemplated by section 536 of the Real Property Law and may be entertained even though a question of title is involved.