
    Albert Friedlander, Plaintiff, v. Emeline H. G. Condict et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1899.)
    Beal property — Belative rights of abutters to the exclusive use of an alley and connecting lane.
    Where abutters on a narrow" alley show no dedication of it to the use of loading and unloading trucks, nor any right to such use by prescription, other abutters thereon who have had exclusive use of it for forty years and who are mesne grantees of one, who, in 1825, laid out the alley by a map and survey and, in a contemporaneous recorded writing, declared it to be appropriated to the exclusive use of the lots of the mesne grantees, subject to certain conditions which have been performed by them, are entitled to restrain the first-named abutters from loading and unloading trucks in the alley.
    Where remote grantees of separate parcels, under one, who, in 1806, laid out a lane connecting with the alley as a road and way for the sole use of himself and his assigns, show no exclusive right to the use of the lane as between themselves, their rights therein are identical and neither can restrain the other from using the lane in a lawful manner.
    Motion "by plaintiff for an injunction pendente lite, to enjoin the defendants from using Shinbone alley and Cross lane, running from Bleecker to Bond streets, between Broadway and the Bowery, in the borough of Manhattan, in the city of Eew York. Since the recent opening" of Elm street, one entrance to the alley is upon that street, instead of winding toward and opening upon Bleecker. The plaintiff owns Eos. 1, 2 and 3 Bond street, and the defendants’ property is on Bleecker. The alley is in the rear of both properties, which are valuable, and the privilege of using the alley for the loading and unloading of trucks important for the occupants of each. The lane funs in a southerly direction from Bond street, parallel with Broadway, and commencing 130 feet easterly therefrom, is 20 feet wide and about 100 feet long. This was opened about 1806. The alley was opened in 1825, is 15 feet wide, connects with the lane, and runs about 400 feet in an easterly direction toward the Bowery, and runs thence southerly in an oblique direction to Bleecker street. The Bank for Savings formerly occupied the land now owned by the defendant Condict.
    Upon the removal of the bank she purchased the property and erected thereon a twelve-story building, which has just been completed; and the occupants intend to use the alley for loading and unloading goods; hence the present application to enjoin such use.
    Oppenheim & Severance, for motion.
    Phillips & Avery, opposed.
   McAdam, J.

Under the claim for injunctive relief two questions come up: (1) The rights of the parties in Shinbone alley; (2) their rights in Cross lane. (1) As to Shinbone alley.— The plaintiff’s predecessor in title, William Israel, in 1825 caused a survey and map to be made of his property on the block in question on the southerly side of Bond street, upon which map the property was divided into lots and Shinbone alley laid out; and, in a writing recorded with the map and survey, the said Israel declared that the alley, “ as extending from Cross lane,” is laid out and appropriated to the lots fronting on Bond street and extending to the alley (which include the plaintiff’s), and that the exclusive use of the alley is attached to said lots, subject to the payment of all costs, charges and expenses of regulating, repairing and maintaining the same, and bearing payment and discharging all taxes and assessments to be levied or imposed thereon. Is the plaintiff, as the owner of lots thus designated by Israel, estopped from claiming the exclusive use of the alley in the rear of his premises as against the defendants, occupiers of lots immediately south of the alley, which lots are not among those designated? This controversy is not one between the public and a private individual; merely private rights are involved herein. The defendants maintain that they have the right to load and unload trucks on the alley, which is less than fifteen feet wide, in the rear of their and the plaintiff’s premises, while the plaintiff, relying upon the exclusive use of the alley appurtenant to his lots, and the actual exercise of that exclusive right for over forty years last past, attempts to enjoin the exercise of the claim asserted. Although there may have been a dedication of the alley to the general public for passage to and from contiguous streets, which limited dedication, however, might not impair the right of the owners to terminate snch privilege at any time (Weiss v. South Bethlehem Bor., 136 Penn. St. 294), the defendants have shown no dedication of the particular strip in question to the uses sought to be enjoined, nor have they by prescription any right to do such'acts. For, immediately prior to the defendants occupying their premises, and up to 1897, the Bank for Savings occupied the land; its building had stood thereon for over forty years; and during that time it not only made no use of the strip in question for any purpose, but it acquiesced in the exclusive use thereof by the plaintiff and his predecessors in title. It also appears that the plaintiff has paid taxes-on the alley for the past three years. It is clear, therefore, that the rights of the defendants in the alley are no greater than those,, if any, of the general public therein, and that the plaintiff is not estopped from seeking the relief prayed for as to said alley. See Knabe v. Levelle, 23 N. Y. Supp. 818. (2) As to Cross lane.— In 1806 Samuel Jones, who, with Antony L. Bleecker, owned all that part of the block in question, authorized the laying out and opening of Cross lane as a road and way for the sole use of him;self, his heirs and assigns. In 1810 the said Jones conveyed to-said Bleecker, defendants’ predecessor in title, certain premises, bounding the same northwesterly by the lane, and the land so conveyed is now the rear of defendants’ premises. The plaintiff has proved no right in the lane which can exclude the defendants from a lawful use thereof in connection with their business. As far as that strip of land is concerned, the rights of the parties, as remote grantees of Jones, are identical. The motion for an injunction will, therefore, be granted as to Shinbone alley, but denied as to' Gross lane.

Ordered accordingly.  