Sterrer v. Calestine

443 N.E.2d 952, 57 N.Y.2d 1030, 457 N.Y.S.2d 478, 1982 N.Y. LEXIS 3860

Opinion

OPINION OF THE COURT

Memorandum.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs.

Plaintiff’s argument that the earlier action dealt with an implied easement over the surface of the lots rather than an express reservation with respect to sewers and repairs may have been a valid basis for appeal of the prior judgment which held defendants’ title absolute and unencumbered and declared plaintiff barred from all claim to an easement in the land. Not having appealed that judgment, however, plaintiff is barred by it from maintaining the present action for the reasons stated in the Appellate Division memorandum.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.