Schmier v. Balsam

Appellate Division of the Supreme Court of New York

Schmier v. Balsam

241 A.D. 744

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1934

StatusPublished

This text of 241 A.D. 744 (Schmier v. Balsam) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schmier v. Balsam, 241 A.D. 744 (N.Y. Ct. App. 1934).

Pincite

Opinion

Judgment affirmed, with costs. No opinion. Hagarty, CarsweE, Scudder and Tompkins, JJ., concur; Lazansky, P. J., dissents, with the foEowing memorandum: For five years, without objection on the part of plaintiffs, appeEant had used the premises as a lumber yard in direct violation of the covenant. After the fire there was no protest by plaintiffs untE the service of the summons and complaint, at which time the new structure had been substantiaEy erected. Under these circumstances plaintiffs are not entitled to injunctive reUef except as to the encroachment on the buEding line restriction. There is no proof as to the position of the structure before the fire.

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Judgment affirmed, with costs. No opinion. Hagarty, CarsweE, Scudder and Tompkins, JJ., concur; Lazansky, P. J., dissents, with the foEowing memorandum: For five years, without objection on the part of plaintiffs, appeEant had used the premises as a lumber yard in direct violation of the covenant. After the fire there was no protest by plaintiffs untE the service of the summons and complaint, at which time the new structure had been substantiaEy erected. Under these circumstances plaintiffs are not entitled to injunctive reUef except as to the encroachment on the buEding line restriction. There is no proof as to the position of the structure before the fire.

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Bluebook (online)

241 A.D. 744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schmier-v-balsam-nyappdiv-1934.