Wolfe v. Schalkenbach

229 A.D. 422, 243 N.Y.S. 244, 1930 N.Y. App. Div. LEXIS 10404

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1930
• Status: Published

Opinion

Whitmyer, J.

The action is for a permanent injunction to enjoin and restrain defendant from interfering in any way with a strip of land, ten feet wide, claimed by both parties. They own' contiguous lots on the westerly shore of Lake Taconic, in the town of Grafton, Rensselaer county, N. Y. Defendant’s lot is the next southerly of. plaintiff’s. The strip is the northerly part of plaintiff's lot or the southerly part of defendant’s lot, as the fact may be.

Ownership and the right to possession are the issues. The action is within the statutory definition of an action in ejectment, where defendant will have a legal right to a trial of the issues by a jury. The equitable issues are incidental and the prayer for equitable relief does not change the nature of the action. If successful, plaintiff may secure all the relief to which he is entitled. (City of Syracuse v. Hogan, 234 N. Y. 457, 461, 462.) In addition, the titles are from a common source and defendant’s is the older, while his lot is bounded on the southerly side for the full depth of 200 feet by a road, 20 feet wide, which is still there, and plaintiff’s is bounded on its southerly side, for the same depth, by defendant’s northerly line, and the affidavits of defendant allege occupancy and user of the strip by him for more than twenty years, without objection by plaintiff or his predecessors, with other acts of recognition.

The order should be reversed, with costs, and the motion for an injunction pendente lite should be denied, with costs.

Hinmajst, Acting P. J., Davis, Hill and Hasbrouck, JJ., concur.

Order reversed on the law and the facts, with ten dollars costs and disbursements, and the motion for injunction pendente lite denied, with ten dollars costs.