
    The Dime Savings Bank of Brooklyn, Respondent, v. Louise C. Butler and Others, Appellants, Impleaded with Clara Cahn and Others, Defendants.
    First Department,
    April 9, 1915.
    Real property — action under section 1638 of the Code of Civil Procedure to determine validity of adverse claim—«• claim in the nature of an easement — claim by defendant restricting the plaintiff in its use and enjoyment of premises — pleading — complaint.
    Under section 1638 of the Code of Civil Procedure, providing that an owner of real property may bring an action to compel the determination of any adverse claim “including any claim in the nature of an easement therein,” an owner of a plot of land may sue to determine the validity of a claim asserted by owners of property in the same block to a right to exercise dominion over plaintiff’s plot to the extent that it may not, without their consent, build upon or use its land, unless it complies with certain restrictions.
    The plaintiff in such an action, who alleges that the defendants ‘ unj ustly ” make the claim, need not state facts showing wherein the unjustness consists, nor set forth the source and basis of the defendants’ claim.
    Appeal by the defendants, Louise C. Butler and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1915, as resettled by an order entered in said clerk’s office on the 21st day of January, 1915, overruling demurrers to the complaint.
    
      J. Edwards Wyckoff, for the appellant Butler.
    
      John Frankenheimer, for the appellants Nathan and others.
    
      Samuel Hoff, for the appellant Liebmann.
    
      William N. Dykman, for the respondent.
   Scott, J.:

Plaintiff, the owner of a plot of land on the southeast corner of Madison avenue and Seventy-second street in the city of New York, sues under section 1638 et seq. of the Code of Civil Procedure to determine the validity of a claim asserted with respect to said property by the defendants, owners of property in the same block. The nature of the claim as stated in the complaint is that neither the plaintiff nor its successors or assigns can erect, or cause or permit to be erected, upon said property any building or buildings except of brick, stone or iron, with roof of slate or metal, not less than four stories in height, of which the fourth story may be represented by a mansard roof, to be used and occupied exclusively for private dwelling houses, such building or buildings to stand upon or cover the whole front of the lot upon which it is built, without an alley or passageway leading into the rear of said lot for an entrance thereto as distinct from said dwelling" house or houses, and that neither the plaintiff, nor its successors in interest or assigns, can erect, suffer or permit upon any part of the said real property any tenement house or flats.

The nature of the defendants’ claim is not that they, or any of them, have any title to plaintiff’s property or lien thereon, or any right themselves to use or enjoy it, but that they have the right to exercise dominion over it to the extent that plaintiff may not without their consent use and enjoy it in any manner and for any purpose that it may see fit, or otherwise than in accordance with respondents’ claim of domination.

It is argued with much learning and force that this right which the defendants claim is not technically an easement over plaintiff’s property, and that defendants’ claim as stated in the complaint cannot be a true easement because not alleged to have arisen in grant or by presumption of a grant. It is not necessary to pass upon this contention (See Simmons v. Crisfield, 197 N. Y. 365, 367) for if it be conceded still it does not follow that the claim is not one which may be litigated in an action brought under the above-mentioned sections of the Code. The language of section 1638 is that the action may be brought to compel the determination of any claim adverse to that of the plaintiff “including any claim in the nature of an easement therein.”

The claim which the defendants admit that they make whether or not technically an easement, is certainly a claim “in the nature of an easement” for it includes the elements of a claim to domination over plaintiff’s property for the benefit and advantage of the defendants. For this reason such a claim, although, created by covenant, and not by grant, is frequently spoken of judicially as an “ easement, ” and is held to be such an incumbrance upon land as to justify the refusal of a vendee to accept the title.

The objection that it is insufficient to allege in the words of section 1639 of the Code that defendants “unjustly” make a claim, and that the plaintiff should state facts showing wherein the unjustness consists seems to be answered by King v. Townshend (78 Hun, 380). Nor is it necessary that the plaintiff should undertake to set forth the source and basis of defendants’ claim. It is sufficient that the defendant makes a claim; its source and validity is for him to assert if he stands upon his claim.

We are of opinion that the complaint states a good cause of action. The judgment appealed from must, therefore, be affirmed, with costs, with leave to appellants to withdraw their demurrers and answer within twenty days upon payment of costs in this court and in the court below.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Judgment affirmed, with costs, with leave to defendants to withdraw demurrers and to answer on payment of costs in. this court and in the court below.  