
    Levi P. Rose, Resp’t, v. David Hawley et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Deed—Breach of condition.
    Plaintiff deeded a parcel of land to the town of Yonkers in 1848 for a highway, upon condition “that no house, building or other erection whatever, except a public monument, shall ever be built or erected or permitted upon the said land or upon any part thereof. Meld, that the land conveyed could be used for the ordinary purposes of a highway, gas pipes could be put under it, water mains and sewer excavations could be made in it, and areas for light and for access to the buildings bounded on it, provided that the entire surface of the street was made good and safe for public travel.
    Appeal from judgment in favor of plaintiff in action of ejectment, and from order denying motion for a new trial.
    The plaintiff brought suit to recover possession of certain land in the city of Yonkers, on the ground that the city of Yonkers had violated a certain condition in a deed made by the plaintiff to the town of Yonkers in the year 1848.
    The complaint alleges in the fourth paragraph that in the year 1848 the plaintiff conveyed to the town of Yonkers certain premises upon condition “ that the said land hereby conveyed shall forever hereafter be and remain public and open as a public highway, and that no house, building or other erection whatsoever, except a public monument, shall ever be built or erected or permitted upon the said land or upon any part thereof.”
    The seventh allegation avers that the above condition has been broken, because the city of Yonkers has permitted upon said land a house building and other erection owned by the defendant, Hawley.
    
      The complaint in the ninth paragraph sets forth that this plaintiff commenced an action against these same defendants in the year 1886, to recover possession of the land described in this action because of the breach of the conditions mentioned in paragraph six of the complaint in the present action by the encroachment of the building known as Radford Hall, which still stands as it stood at the commencement of the former action, and that in the former suit the city of Yonkers answered, and that the case was tried by the city attorney, and that in the former suit a special term judgment went for the plaintiff, which judgment was reversed at the general term.
    The complaint further alleges that the plaintiff in the former action appealed to the court of appeals, where the judgment and order of the general term was affirmed.
    That this affirmance, according to the complaint, rested upon the sole ground that the defendant, the city of Yonkers, had received no notice of the fact that a house building or other erection had been built, erected or permitted upon the said land, and that said notice was held to be necessary in order to entitle plaintiff to maintain said action.
    The complaint further alleges that in and by the proceedings in the first action, the city of Yonkers has had due notice of the breach of the conditions in the deed from plaintiff to the town.
    The answers of the defendants deny the allegations in the complaint setting forth the breach of the conditions of the deed, and that the decision of the court of appeals was based solely upon the point of notice, and aver that in the former case the court of appeals rendered judgment absolute in favor of the defendants against the plaintiff.
    It was admitted by the complaint and answer that the question of encroachment had been tried at the special term of the supreme court, and judgment rendered in favor of the plaintiff, and that said judgment had been reversed by the general term, and a new trial ordered. It was further admitted that the court of appeals had affirmed the order of the general term granting a new trial, and had rendered judgment absolute in favor of the defendants against the plaintiff.
    The complaint then alleged that the only reason why this “ judgment absolute ” was not a bar, was because the decision of the court of appeals awarding “ judgment absolute ’’ was based upon the sole ground that prior to the commencement of the first action the defendant, the city of Yonkers, had received no notice of the fact that an erection had been permitted upon the land.
    The proof on the trial was the same as in the former action, except the documentary evidence, which consisted of the judgment roll in that adtion.
    
      Joseph, F Daly, for app’lt, city of Yonkers; William Allen Butler and Theodore Fitch, for app'lts Hawley et al.; James M. Hunt, for resp’t.
   Pratt, J.

The facts in this case were before the court in a former action, and it was then held that they established no breach of the condition of the deed under which defendants make title. See 45 Hun. 592; 10 St. Rep., 360.

That question, among others, was argued before the court of appeals, which in 118 N. Y., 502, 517; 30 St. Rep., 6, was also of opinion that the condition was not violated. As the views expressed by this court as to the legal effect of the facts have been expressly approved, we should scarcely feel at liberty to depart from our decision in 45 Hun., if we were in doubt of its correctness. But upon re-examination we are confirmed in our opinion as there expressed.

According to those views the plaintiff should have been non-suited at the close of his case.

The plaintiff argues that the previous judgment is not binding upon us as an adjudication. However that may technically be, the opinion of our appellate court upon a fixed state of facts rendered upon full argument cannot be disregarded.

The judgment must be reversed upon the facts, and a new trial ordered, costs to abide the event.

Barnard, P. J., concurs; Dykman, J., not sitting.  