Seamans v. Gulf Refining Co.

239 A.D. 784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1933
• Status: Published

Opinion

Motions of the plaintiff and the defendant to amend the order granted in part as follows: 1. To recite the fact that two of the justices dissented in part. 2. That two additional findings of fact be made as follows: That plaintiff at present has suffered only nominal damages by reason of the erection and maintenance of defendant’s two-story brick warehouse,— a portion of which encroaches on Industrial place. The removal of that part of defendant’s said warehouse which encroaches upon Industrial place would subject the defendant to a very large expense without any present benefit to plaintiff — the erection and maintenance of said warehouse being without practical intrusion on the present rights of plaintiff. 3. As a conclusion of law: That the ultimate rights of the plaintiff in the street known as Industrial place, or other streets on the map, and her right to an injunction and damages are not now determined, but that she shall have leave to apply an any time on the foot of the judgment, upon circumstances showing a substantial interference with her rights as the owner of improved property or property about to be improved on Columbus avenue, for damages or for an injunction as the court may direct; or at her election that plaintiff may bring a separate action for such other relief as she may be advised on account of any injury to or interference with her rights as an improved property owner or of property about to be improved. 4. Either party may be entitled to enter a judgment in accordance with the order as resettled. Present — Lazansky, P. J., Young, Kapper, Scudder and Tompkins, JJ. Amended order to be settled on notice if the parties cannot agree on the form thereof. [See 237 App. Div. 202.]