Weinstein v. Weisser

240 A.D. 724

Opinion

Judgment modified by providing that the defendant be enjoined from the continued maintenance of the said fence to a height in excess of ten feet, measured from the established grade at the curb (122 East 40th Street Corp. v. Dranyam Realty Corp., 226 App. Div. 78), and as so modified, unanimously affirmed, without costs. We are of opinion that the fence was erected in bad faith and, as constructed, constitutes a private nuisance, but we think that under section 3 of the Real Property Law an owner may erect a fence on his land to the height of ten feet, measured in conformity with the holding in the case cited. Findings and conclusions inconsistent herewith are reversed and new findings accordingly will be made, order to be settled on notice. Present — Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ.