Stolts v. Tuska

83 A.D. 426, 82 N.Y.S. 93

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1903
• Status: Published

Opinion

Laughlin, J.:

When this action was commenced Morris Tuska, since deceased, owned a tract of land fronting on the East river extending from One Hundred and Fifth to One Hundred and Sixth streets. He had leased a strip oft the westerly side to the plaintiff, together with a right of access to and use of the dock on the remaining premises. After the lease to the plaintiff had been made and recorded his landlord leased the southerly half of the premises lying between those leased to the plaintiff and the river to the defendant Jackson, and thereafter leased the northerly half to the defendant Wright, making no reference to the reservation of the plaintiff’s easements. The plaintiff asserted under his lease a right of way over the premises subsequently leased to Jackson and Wright to and from the dock and a right to use the dock. The right of way had been disputed by Tuska before making the other leases and was afterwards denied by him and his subsequent tenants, and they also denied plaintiff’s right to use the dock. This action was brought against the landlord and his subsequent tenants to establish, locate and ■define plaintiff’s right of way and right to use the dock and to enjoin the defendants from obstructing him in using the right of way and ■dock.

Ho damages are demanded against Tuska, and his personal estate cannot be affected by the judgment. The motion to bring in his administrator was, therefore, properly denied.

Tuska, shortly before his death, conveyed all the premises to Julia Tuska, his wife. The leases, which are for long periods, all expire at the same time, and hence it is contended that the judgment will operate only upon the leasehold estates, and that Tuska’s grantee is neither a necessary or proper party. The leases of the defendants may be surrendered, canceled or otherwise terminated before the expiration of the period specified. In that event a judgment establishing or defining plaintiff’s rights either as to the right of way or to the use of the dock would not be binding upon Mrs. Tuska, since she does not derive her rights through the tenants. Consequently she is a proper party. The rights of the plaintiff under his lease should be finally adjusted as to all parties in interest, and to that end Julia Tuska should have been brought in.

It follows that the order should be modified by granting the plaintiff’s motion for leave to serve a supplemental summons and complaint making Julia Tuska a party defendant, and as thus modified affirmed, without costs.

Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred.

Order modified as stated in opinion, and as modified affirmed,’ without costs.