Schmier v. Balsam

241 A.D. 744

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.