
    Mary McKay Greenwood et al., Ex’rs, Resp’ts, v. The Metropolitan Elevated R. Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Basements—Extinguishment oe.
    Certain premises on the corner of Church and Vesey streets fronting on Vesey were conveyed to plaintiff’s testator, and subsequently the adjoining premises on Vesey street were also conveyed to him. Held, that assuming that the latter premises had an easement of light over Church street, such easement was cut off by the conveyance of the first named premises without restriction, and was not revived by the subsequent conveyance to testator.
    
      Appeal from judgment entered against defendants upon verdict of jury, and from order denying motion for a new trial made upon the judge’s minutes.
    
      Edward B. Thomas, for app’lts; James M. Hunt, for resp’ts.
   Sedgwick, Ch. J.

The action was for damages from the defendants’ building the roadway and running their railroad immediately along the side of plaintiff’s premises in Church street.

The premises were on the southwest corner of Church and Yesey streets. There was one building upon them. They had been formerly owned by the corporation of Trinity Church, and then on a map made by it were known as lots Nos. 38 and 37. The premises are now known as No. 31 and No. 33 Yesey street. The Trinity Church corporation first conveyed the lot known as No. 37 on its map, and then by mesne conveyances it became the property of John Greenwood, of whose title the plaintiffs are the representatives.

The Trinity Church corporation afterwards conveyed in two parcels lot No. 38, and by mesne conveyances it became the property of John Greenwood At the time Greenwood went into possession there was upon the easterly half of lot No. 38, now No. 31, a dwelling-house which fronted on Yesey street. That dwelling-house has been taken down since and there has been built a single building fronting on Yesey street. The depth of the land is sixty-four feet on Church street The defendants’ road is on Church street, and the claim here is for damages for the impairment of the easement of light, etc., over that street.

On the trial, the plaintiffs were allowed to recover for a diminution of light in that part of plaintiff’s premises that was within the lines of lot No. 38.

Assuming that formerly there was an easement of light over Church street existing in favor of lot No. 38, it was possible for the owner of the lot to extinguish it by any method of dealing witli the property that would, for instance, convey the property without the appurtenant easement so that the grantee would not have such an appurtenance, and if he would not have it, it would not be revived, or rather revealed, by his conveyance. Corning v. Gould, 16 Wend., 535; Parker v. Foote, 19 id., 309; Crain v. Fox, 16 Barb., 184; Lattimer v. Livermore, 72 N. Y., 174.

It is apparent that enjoyment of lot No. 38 of light from Ohurch street as a right depended upon the rignt of that lot to prevent building upon No. 37 in such a way that the light would be cut off from No. 38, or to prevent any other use of the lot that would have that effect. But when the Trinity corporation conveyed to Greenwood No. 37, it became the right of Greenwood to cut off the light from No. 38. Myers v. Gemmel, 10 Barb., 537, and cases there cited. This was inconsistent with the continuance in lot No. 38 of a right to the easement, and when lot No. 38 was conveyed subject to this condition, it was conveyed without the appurtenance of the easement. And the subsequent conveyance to Greenwood did not make a new easement or did not create a right that had not been conveyed by Trinity corporation.

The jury were allowed to find damage from the diminution of light over the space that had been lot Ro. 38. For this reason there should be a reversal of the judgment and order and a new trial ordered, with costs to abide the event

Freedman, J., concurs.  