Mileage Gas Corp. v. Kushner

245 A.D. 836

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

Opinion

Action to enjoin defendant from interfering with the erection and maintenance of a sign on plaintiff’s side of a party wall separating premises of the parties. Judgment dismissing plaintiff’s complaint reversed on the law, with costs, and judgment directed for plaintiff for the relief demanded in the complaint, with costs. Findings inconsistent with this decision are reversed and new findings will be made in accordance herewith. It is conceded that plaintiff’s sign, including bolts and braces, is entirely on that part of the wall which is on plaintiff’s property. Although plaintiff demolished its building, which was supported by the party wall, and erected a one-story gas station, with independent walls, as long as the defendant maintains the wall for the benefit of its building, the plaintiff has the right to the use of the westerly side of the wall, eight and one-half inches of which are on its property. (Varriale v. Brooklyn Edison Co., 252 N. Y. 222; Vogel v. Shell Eastern Petroleum Products, Inc., [Special Term, Pt. 4, Kings County, June 28, 1933, not reported]; Mileage Gas Co. v. Herman, 78 N. Y. L. J., 2078, Jan. 30, 1928.) Lazansky, P. J., Carswell, Scudder, Tompkins and Johnston, JJ., concur. Settle order on notice.