New York State Teachers' Retirement System v. Coyne

257 A.D. 1010, 13 N.Y.S.2d 660, 1939 N.Y. App. Div. LEXIS 8907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1939
• Status: Published

Opinion

Order granting respondent’s motion for summary judgment and denying plaintiff’s cross-motion for the same relief, and judgment entered thereon in favor of respondent, reversed on the law and the facts, with ten dollars costs and disbursements, respondent’s motion denied, and plaintiff’s cross-motion for summary judgment granted, with ten dollars costs. In view of the decision of this court in Coyne v. New York State Teachers’ Retirement System (ante, p. 1006), decided herewith, to the effect that the proof fails to sustain a finding of an easement by implication on the ground of necessity, no issue remains for trial and plaintiff is entitled to summary judgment directing foreclosure of its mortgage and sale of the property free from the burden of the easement. Carswell, Johnston, Adel and Taylor, JJ., concur; Hagarty, J., concurs in the result, with the following memorandum: Although I am of opinion that the order granting respondent’s motion for summary judgment should be reversed for the reason that the prior determination did not adjudicate the issue presented in this action, namely, whether or not the easement was in existence or in contemplation at the time of the maldng and delivery of the mortgage to plaintiff, I am constrained to vote to reverse the denial of plaintiff’s cross-motion for summary judgment and to grant such motion solely on the authority of the decision of this court in the companion appeal (ante, p. 1006, decided herewith), in which, however, I have dissented.