
    Jay Weil et al., Respondents-Appellants, v. Atlantic Beach Holding Corporation et al., Appellants-Respondents; Harry Koeppel et al., Appellants, et al., Defendants.
    Argued November 23, 1955;
    decided March 15, 1956.
    
      
      Charles E. Lapp, Jr., for respondents-appellants.
    I. The sale of property pursuant to the Atlantic Beach maps, all of which showed the boardwalk and streets leading to the bay, coupled with the written and verbal representations as to the use of these facilities, created the easements claimed by plaintiffs. (Williamson v. Salmon, 105 Misc. 485, 196 App. Div. 922, 233 N. Y. 657; Wilkinson v. Nassau Shores, 1 Misc 2d 917, 278 App. Div. 970, 304 N. Y. 614; Erit Realty Corp. v. Sea Gate Assn., 259 N. Y. 466; Drabinsky v. Seagate Assn., 239 N. Y. 321; Biggs v. Sea Gate Assn., 211 N. Y. 482; Boughton v. Baldwin, 134 Misc. 34; Sauchelli v. Fata, 306 N. Y. 123; Edom v. Lake, 278 App. Div. 589.) II. The easements over the boardwalk and streets have not been lost by abandonment, adverse possession, estoppel or otherwise. (Carman v. Hewitt, 280 App. Div. 866, 305 N. Y. 718; Belotti v. Bickhardt, 228 N. Y. 296.) ITT. The proceedings in the Federal court and conveyances made pursuant to the plan of reorganization were ineffectual to extinguish the easements of property owners. IV. The rights of the property owners over the walk across the gap created by the cut in the boardwalk were at issue and were litigated herein. The elimination of such rights by the Appellate Division was erroneous and they should be reinstated. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; Goldrich v. Franklin Gardens Corp., 282 App. Div. 698; Sauchelli v. Fata, 306 N. Y. 123; Erit Realty Corp. v. Sea Gate Assn., 259 N. Y. 466; United States Print. & Lithograph Co. v. Powers, 206 App. Div. 114; Phillips v. West Rockaway Land Co., 226 N. Y. 507; White v. La Due & Fitch, Inc., 303 N. Y. 122; Hofmann v. Hofmann, 172 Misc. 378, 259 App. Div. 820, 283 N. Y. 730.)
    
      Carl E. Peterson for Atlantic Beach Holding Corporation and others, appellants-respondents.
    I. The holding corporation acquired a clear record title to the boardwalk, which it has passed on to the Cabana Club. (Ward v. Isbill, 73 Hun 550; Hood v. Webster, 271 N. Y. 57; Smith v. Pure Strain Farms Co., 180 App. Div. 703; Ochenkowski v. Dunaj, 232 App. Div. 441; O'Neill v. Lola Realty Corp., 264 App. Div. 60; Kantor v. Cohn, 181 App. Div. 400; Jospe v. Danis, 138 App. Div. 544; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476; Wood v. Chapin, 13 N. Y. 509; Bumpus v. Platner, 1 Johns. Ch. 213.) II. Plaintiffs’ proof wholly failed to establish notice to the holding corporation of the facts upon which the finding of easement by implication or representation was based. (Corrigan v. Bobbs-Merrill Co., 228 N. Y. 58; United States Print. & Lithograph Co. v. Powers, 206 App. Div. 114.) III. Proof of sales promises was incompetent and the judgment based thereon must be reversed. (White v. Manhattan Ry. Co., 139 N. Y. 19; Nellis v. Munson, 108 N. Y. 453; Taylor v. Millard, 118 N. Y. 244; Norton v. Ritter, 121 App. Div. 497; Heyman v. Biggs, 223 N. Y. 118; Erit Realty Corp. v. Sea Gate Assn., 249 N. Y. 52; Rohdenburg Realty Corp. v. Damrock Realty Corp., 167 Misc. 244; Gibney v. Marchay, 34 N. Y. 301; People v. Holmes, 166 N. Y. 540.) IV. Assuming the existence of an implied right of way over appellant’s boardwalk, its enforcement would be inequitable and unconscionable. (Forstmann v. Joray Holding Co., 244 N. Y. 22; McCann v. Chasm Power Co., 211 N. Y. 301; Horton v. Niagara, Lockport & Ontario Power Co., 231 App. Div. 386.) V. The continued maintenance of the boardwalk for use by plaintiff and others will involve problems which courts of equity will not and should not undertake to solve. (Greenfarb v. R. S. K. Realty Corp., 256 N. Y. 130; 
      Matter of Schenectady Ry. Co. v. Greene, 227 App. Div. 11; Streuber v. Meacham & Son, 163 App. Div. 574; Olney v. Culluloo Park Co., 182 App. Div. 560; Herman v. Roberts, 119 N. Y. 37; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; Beck v. Allison, 56 N. Y. 366.) VI. The complete change, with the property owners’ acquiescence, in the relationship between appellant’s boardwalk and the rest of the structure, constituted an abandonment of the alleged easement. (Nellis v. Munson, 108 N. Y. 453; Wiseman v. Lucksinger, 84 N. Y. 31; 357 East 76th St. Corp. v. Knickerbocker Ice Co., 263 N. Y. 63; Heartt v. Kruger, 121 N. Y. 386; Partridge v. Gilbert, 15 N. Y. 601; Kerwin v. Post, 120 App. Div. 179; Cotting v. City of Boston, 201 Mass. 97.) VII. This is a strictly personal action by and on behalf of two individual plaintiffs. It was error to grant judgment in favor of all or any other property owners. (Bouton v. Van Buren, 229 N. Y. 17; Brenner v. Title Guar. & Trust Co., 276 N. Y. 230; White v. La Due & Fitch, Inc., 303 N. Y. 122.) VIII. The elimination of the walk between the sections of boardwalk in front of appellant’s hotel from the right of way was proper and should be affirmed. (Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220.)
    
      Martin Koeppel for Mitchell M. Feinberg and others, appellants-respondents.
    I. Plaintiffs and defendants are bound by the provisions of their deeds and by Map No. 630 pursuant to which they acquired their respective properties. The rights conveyed thereby may not be enlarged or restricted by advertising brochures or verbal sales talk of which defendants had no knowledge. (Nellis v. Munson, 108 N. Y. 453; Heyman v. Biggs, 223 N. Y. 118; Taylor v. Millard, 118 N. Y. 244; Norton v. Ritter, 121 App. Div. 497; Erit Realty Corp. v. Sea Gate Assn., 249 N. Y. 52; Phillips v. West Rockaway Land Co., 226 N. Y. 507; Lewis v. Gollner, 129 N. Y. 227; Bristol v. Woodward, 251 N. Y. 275; Bauman v. Wagner, 146 App. Div. 191; Moller v. Presbyterian Hosp., 65 App. Div. 134.) II. Defendants, as owners of the cul-de-sac or dead-end strip encompassed by their homes on its easterly and westerly sides, are entitled to exclusive use thereof. (Matter of City of New York [East 177th St.], 239 N. Y. 119; Sauchelli v. Fata, 306 N. Y. 123; Goldrich v. Franklin Gardens Corp., 282 App. Div. 698; Nichols Copper Co. v. Connolly, 208 App. Div. 667, 240 N. Y. 596; Matter of Mayor, Alderman & Commonalty of City of N. Y., 
      188 N. Y. 581; Wilkinson v. Nassau Shores, 1 Misc 2d 917; Erit Realty Corp. v. Sea Gate Assn., 259 N. Y. 466.) III. The declaration of easements filed in 1942 by a successor of the developer cannot diminish or increase rights theretofore conveyed by the deeds. (Davidson v. Dunham, 159 App. Div. 207; Matter of City of New York [Brigham St.], 148 Misc. 845, 246 App. Div. 819, 273 N. Y. 508; Sauchelli v. Fata, 306 N. Y. 123; Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220.)
   Burke, J.

This case involves two separate causes of action; the first against the Atlantic Beach Holding Corporation for a judgment declaring that the residents of the community have a right to the use of the boardwalk in front of the club; and the second, against the defendants, Feinberg and Koeppel, for a judgment declaring that the residents of the community have a right to use that portion of Suffolk Boulevard* which Feinberg and Koeppel have enclosed.

Atlantic Beach, Nassau County, New York, is a parcel of land at the westerly end of Long Beach, Long Island, approximately 6,800 feet in length and 1,900 feet deep from the Atlantic Ocean on the south to Far Rockaway Bay on the north. In 1926 the entire parcel of land, which was then undeveloped, was conveyed to Island Park Associates Inc. The corporation thereupon filed a map of the tract, showing a subdivision into lots, blocks, streets, beach areas, designated as Map No. 500, filed in the Nassau County Clerk’s office. Shortly thereafter a second map, Map No. 630, substantially identical with the first, with exceptions not relevant here, was filed in the Nassau County Clerk’s office. Both of these maps plotted a single and unobstructed boardwalk for the full length of the development, immediately south of the most southerly blocks shown on the maps and just north of the high water line of the Atlantic Ocean. The strip, representing the boardwalk, was not given a lot number, nor was it subdivided into plots like the rest of the areas available for sale. Both of the afore-mentioned maps laid out a series of streets, including Suffolk Boulevard, which runs north and south, terminating on the north near the waters of Far Rock-away Bay. This boardwalk, completed in 1929-1930, was plotted on the early maps as extending for the full length of the development. As constructed, however, it was about a mile long, commencing at a point just west of the Plaza and extended easterly beyond Vernon Avenue.

Such were the conditions in Atlantic Beach when in 1929 the husband of plaintiff Ollendorff and in 1933 the plaintiff Weil bought homes located on the east side of Tioga Avenue between Park Street and Ocean Boulevard. Their deeds describe the properties by reference to Map No. 630. Map No. 630 shows a beach on the south bordering the ocean and on the north a thin strip of land bordering the bay. The deeds granted the plaintiffs a perpetual right to the use of the beach for bathing purposes, and access to said beach without charge therefor.

When originally erected the boardwalk was completely open and unobstructed from the Plaza to Vernon Avenue. Sometime in the early 1930’s, a portion of the boardwalk about 110 feet in width in front of the property now in dispute was removed by the club.

This gap did not prevent the property owners from waiting the full length from Vernon Avenue to the Plaza, because there were two means of access past the cut: (1) there was a ramp around this cut at the same level as the boardwalk, and (2) there were stairs on either side of the gap so that property owners could descend on one side, cross the sand and ascend to the boardwalk to the other side of the cut. In the early 1930’s, the club erected small three-foot picket fences with swinging gates across the boardwalk at Putnam Boulevard and at Vernon Avenue. These fences were erected to keep out nonresidents of Atlantic Beach. The residents and property owners were at all times permitted free access through the entire length of the boardwalk. These conditions existed up until 1939.

In the summer of 1939, solid wooden fences about five feet high were erected across the boardwalk at Putnam and Vernon without any gates. Plaintiff Weil and others attempted to tear down one of the fences when they were interrupted by guards of the club who brought them in to see Drosnes, an official of the club and one of the defendants in this action. After an inconclusive discussion, Weil and his neighbors returned home. Thereafter, the wooden fences were replaced by wire fences with gates and locks. Keys to the gates were given to the property owners, some of whom signed receipts. The receipt, signed by Weil, provided in part: “It is also understood that the signing hereof by the undersigned does not in any way constitute an admission that the undersigned need apply to the Atlantic Beach Hotel and Bath Club, Inc. for any such permission, this arrangement being purely temporary and voluntary and is not intended to create any additional rights or waive any rights by either party.” This condition continued to exist until about 1945 when the gates were closed permanently.

During this time the rest of the boardwalk fell into disrepair. The boardwalk was finally closed in 1949.

Efforts to rehabilitate the boardwalk culminated in the formation of the Atlantic Beach Park District. In 1952 the Park District built a boardwalk, extending westward from Putnam Boulevard to the Plaza, a distance of some 16 blocks. This boardwalk, however, does not join the defendant’s boardwalk, because the funds were exhausted before a 40-to-60 foot gap could be bridged. The old section of the boardwalk which had been erected at that place was destroyed by a hurricane. The facts related above are pertinent to the issues in the first cause of action. We now turn to the circumstances of the parties to the second cause of action.

In 1941 the defendant Feinberg bought from a remote grantee of the developer a water-front home which extends from Bay Boulevard to the bay on the west side of the dead-end strip labeled on the map as “ Suffolk Boulevard”. In the spring of 1944 Koeppel bought a home which is opposite Feinberg’s premises on Suffolk Boulevard.

Maps Nos. 500 and 630, filed by the developer, laid out a series of streets, including Suffolk Boulevard, running north and south and terminating on the north near the waters of Far Rockaway Bay. Along the entire northerly line of the development there appears to be a strip of land (indicated by double lines on the map) between the north line of the lots and the northerly extremity of the streets leading to the bay. Most of the streets were improved by the developer with pavement and sidewalks but due to the approaching depression, the streets upon which no homes fronted were not improved, although on Suffolk Boulevard, adjoining Feinberg’s house, there was a sidewalk for the full depth of the lot. During the course of the development, the developer reserved title to the streets.

As a result of a bankruptcy reorganization, the trustees conveyed title to the streets to the Atlantic Beach Sales Corporation in 1937. Later in 1937 Maps Nos. 3829, 3830 and 3831 were filed. The strip of land represented by double line on the north side of Atlantic Beach was eliminated except at the ends of the streets where the double line remained and was marked in each case “ 3' reserve.”

By instrument dated September 3, 1942, and recorded on October 22, 1942, the sales corporation filed a declaration of easements affecting 14 “ bay areas ”, including Suffolk Boulevard, and the waters of the bay. These bay areas consisted of the strips of land marked “3' reserve ” on the aforementioned maps and whatever land had accreted thereto along the bay. By the terms of said declaration the property owners were granted easements of passage over the bay areas by foot and for transporting boats. Paragraph “Fourth” of that declaration provides that “ Access to the said ‘ bay areas ’ shall not be obstructed by any fences ” unless the same have gates affording access to the bay and that “ no structures shall be erected on any of the said ‘ bay areas ’ except such structures as may be necessary * # - * for protection from the waters of Far Bockaway Bay ’ ’. The mortgages upon the bay areas and streets, held by the Title Guarantee & Trust Company, were subordinated to these declarations and on February 27, 1943, when the mortgage was foreclosed, the Beferee’s deed conveying the same to the title company was made expressly subject to the said declarations.

When Koeppel and Feinberg obtained quitclaim deeds to their respective halves of Suffolk Boulevard, they had constructive notice that there was an easement over the street in favor of the Atlantic Beach residents. Not only was the declaration of easements on file, but the defendants’ quitclaims stated that they were subject to easements of record, if any. These quitclaim deeds refer to Map No. 630 on which the area in question is clearly designated as a street.

After a trial without a jury, Special Term granted judgment, decreeing that: (1) property owners in Atlantic Beach have easements over and are entitled to the free and unobstructed use and right of way through, over and upon ’ ’ the club’s boardwalk and the walk in between the sections of boardwalk in front of the club; (2) the cost of maintaining that strip of boardwalk shall be shared by the property owners in Atlantic Beach ; (3) the defendant must remove the fences barring access to the club’s boardwalk and is enjoined from intérfering with the property owners’ easement, and (4) property owners in Atlantic Beach have easements over and are entitled to the free and unobstructed use and right of way through, over and upon that portion of Suffolk Boulevard which lies north of the northerly line of Bay Boulevard. On appeal the Appellate Division modified the judgment in two respects: (1) limited the easement to those lots which were originally conveyed by reference to Maps Nos. 500 and 630, and (2) confined the easement to the boardwalk of the club and struck out that portion of the judgment which extended the easement to the walk in front of the club. Both parties appeal to this court from this modification.

In the disposition made of this case below, it was properly held that an easement by implication in and to the boardwalk exists in favor of the property owners whose deeds refer to Maps Nos. 500 and 630 and to their grantees and that an easement by implication exists in favor of the property owners in and to Suffolk Boulevard. (Wilkinson v. Nassau Shores, 1 Misc 2d 917, affd. 278 App. Div. 970, mod. 304 N. Y. 614; Erit Realty Corp. v. Sea Gate Assn., 259 N. Y. 466.)

However, the plaintiffs contend that the refusal of the Appellate -Division to declare an easement over the walk between the sections of the boardwalk situated where a portion of the boardwalk structure formerly stood is error. This objection is well taken. By the pleadings the property owners seek to establish an easement over the boardwalk as originally erected in front of the club of the developer. The alteration of a small section of the boardwalk by a predecessor of the present defendant corporation to create a space now a walk, cannot deprive the plaintiffs of their easement in and to the boardwalk as originally erected. Accordingly, the property owners whose deeds refer to Maps Nos. 500 and 630 and their grantees are entitled to an easement over the walk. Since the complaint prays for an injunction and general relief, such a prayer invoked the equity powers of the court in the broadest terms. (Ferguson v. Village of Hamburg, 272 N. Y. 234, 239.) “ A prayer for general relief is as broad as the equitable powers of the court, and under it the court may properly shape its decree in accordance with the equities of the case.” (Bonham v. Coe, 249 App. Div. 428, 439, affd. 276 N. Y. 540, and cases cited.) Walrath v. Hanover Fire Ins. Co. (216 N. Y. 220) is not controlling here. The rule in that case is inapplicable to a cause wherein a party seeks an exercise of the power of an equity court to give proper relief under appropriate circumstances.

The judgment of the Appellate Division should be reversed insofar as it strikes the words “ and walk in between the sections of boardwalk in front of the hotel ’ ’ from the first decretal paragraph of the judgment of Special Term. In all other respects the judgment is affirmed, without costs.

Conway, Ch. J., Desmond, Fuld, Froessel and Van Voorhis, JJ., concur; Dye, J., taking no part.

Judgment of Appellate Division modified in accordance with the opinion herein and, as so modified, affirmed, without costs.  