
    Richard Kelly, Plaintiff, v. James T. Penfield and Minnie Penfield, Defendants.
    (Supreme Court, Westchester Special Term,
    April, 1910.)
    Deeds — Lands, tenements and hereditaments granted — Deed with reference to map showing way — Effect as creating easement.
    Injunction—Who and what may he enjoined — Interference with property rights by private persons — Interference with right of way.
    Where a person buys a lot, designated by reference to a map that shows a neighboring street, giving convenient access to a highway shown on the same map on one side of the lot, under such circumstances as justifies the purchaser in believing that the map is a correct representation of the locality and the streets laid down thereon, it is plaintiff’s right to have the conditions as to the streets by which he obtains access to such highway remain the same as when he purchased his lot; and, as against another purchaser of lands on said map from the same owner, he has the right to an injunction to prevent the latter purchaser from building an erection upon any portion of such street in such a manner as to deprive him of access through the same to said highway.
    Action for an injunction.
    Early, Weaver & Early, for plaintiff.
    Henry T. Smith, for defendant James T. Penfield.
    William L. Tomlinson, for defendant Minnie Penfield.
   Morchauser, J.

The defendant James T. Penfield’s father, George J. Penfield, was the owner of a tract of land in Hew York city near the Mount Vernon line and, in 1889, -parcelled the same into lots and laid out streets.

In the division of the George J. Penfield estate the défendant became the owner of lot 97, located on Sound View place, 78 A and 78 B, located on Disbrow place; 78 E and 78 D, located on South Fourteenth avenue, and 248, located on East Two Hundred mid Forty-second street.

Nearly all the remaining lots of the tract so laid out were owned by William W. Penfield, defendant’s brother, and Susan A. Penfield, defendant’s half-sister.

About ten days before the sale, the defendant purchased of -Sarah Moran the lot extending from the city line north to the southerly side of South street, over which it was alleged Disbrow place was extended.

Mrs. Moran was a Miss McLaughlin, and her father owned this property for a long time.

The Moran lot was not a part of the Penfield tract of land.

All these lots owned by the Penfields were advertised for sale by descriptive pamphlets, containing two maps showing the lots by number and streets.

At the advertised sale, the plaintiff purchased lot No. 97 on the west side of -Sound View place, which street did not extend to South street.

Nearly opposite plaintiff’s lot was a street marked on the maps as Warner place, running at right angles from this lot easterly one block, or about 200 feet, to another short street of two blocks in length running parallel with Sound View place and marked on the map as Disbrow place.

One of the maps showed this last street as running at its northerly end to a street shown on the map as .South street, over the city line into Mount Vernon; this map showing more in detail the tract and its surroundings.

The other map was more restricted in details and showed the general location of the tract, but Disbrow place was not shown to open into South street.

The. deed to plaintiff referred to a map on file in the office of the register of deeds in Hew York city, showing the lots and also Disbrow place as running into 'South street.

The location of the defendant’s lots and the lot plaintiff purchased and the location of Warner place and Disbrow place, with their surroundings, may be more clearly understood by reference to the following diagram;

91 A/B represents the plaintiffs’ purchase at the sale of Penfield lots at auction, on May 26, 1906; 0 represents Dis-brow place intersecting South street, E represents South Fourteenth avenue, F represents East Two Hundred and Forty-second street connecting with South Fourteenth avenue.

The next street, on the west of South View place is Baker avenue, running into South-street.

The lots owned by defendant James T. Penfield are marked P.

The defendant closed u]i Disbrow place, north of Warner place through to South street, building a house thereon at the northerly end.

Plaintiff seeks to enjoin him.

Under the circumstances, I believe the plaintiff was justified in believing that the map which showed the extension of Disbrow place was a correct representation of the locality and that the conditions existed there as shown on this map. It showed all the details of the tract and the surroundings as the lots and streets were laid out, and .plaintiff had a right to rely on it.

Disbrow place was not a. remote street from plaintiff’s lot, so as not to depend upon it for egress to South street, and, by connection with Warner place, South street Avas easily accessible. It is plaintiff’s right to have the condition as to streets, where it appears they are not too remote, remain the same as Avhen he purchased the premises.

It cannot be said, in this case, that plaintiff’s lot was not materially injured by the closing of Disbrow place.

“ It is an indisputable fact that the A’alue of city lots is enhanced by the opening of streets, avenues, and public squares in the vicinity of such lots, although the lots do not bound upon such street, avenue or public square.” Wyman v. Mayor, etc., of New York, 11 Wend. 497.

In Lord v. Atkins, 138 N. Y. 184—191, it is stated: u It is well settled that, when the owner of land lays it out into distinct lots, with intersecting streets or avenues, and sells the lots Avith reference to such streets, his grantees or successors cannot afterwards be deprived of the benefit of having such streets kept open. * * * (Story Case, 90 N. Y. 145; The Trustees, etc. v. Cowen, 4 Paige, 510; Wyman v. Mayor, 11 Wend. 487; Bissel v. N. Y. C. & H. R. Ry., 23 N. Y. 61; White’s Bank, etc. v. Nichols, 64 id. 65; Taylor v. Hopper, 62 id. 649; Huttemeier v. Albro, 18 id. 48.)”

This language is adopted by Mr. Justice Willard Bartlett, in Reis v. City of New York, 188 N. Y. 58-70; also citing from this last case (p. 71) : “ In Matter of Twenty-ninth Street (1 Hill, 189), Bbohson, J., said: ‘He could have

intended nothing less by his deeds than a declaration that Twenty-ninth 'Street was, and, so far as he was concerned, should remain a public highway. I do not say that this dedication will extend to all his lands in the site of the street, however remote from the lots sold; but it will, I think, extend to all his lands in the same block, or, in other words, to the next cross street or avenue on each side of the lots sold. The parties must have contemplated an outlet both ways.’ ”

The learned Court of Appeals, construing the Eeis case, said: “ Under the recent decision of this court the grantees of the various lots on the map of the Buckhout farm acquired private easements in the streets shown on that map only to the extent of the block in front of their respective lots and such other parts of the streets as might be necessary to obtain access to a public highway.” Matter of Mayor, etc., 188 N. Y. 581.

The defendant’s counsel contends that if plaintiff had any right at- all, it was only a private right of way; that is not so. Matter of Eleventh Avenue, 81 N. Y. 446.

Disbrow place, as between the parties, was dedicated by Penfield as a public street. Taylor v. Hopper, 62 N. Y. 649; Kerrigan v. Backus, 69 App. Div. 329.

The learned Appellate Division, in reversing the former judgment in this case on appeal (133 App. Div. 367), said: “ If the defendant’s house be buil-t, and it be inequitable to make him take it down, the plaintiff, whose lot is vacant, should get other relief as by way of damages, or that his lot be taken by the defendant at a valuation to be fixed by the court, as an alternative.”

The plaintiff’s lot is vacant, and the defendant’s house is built, and it would be inequitable to make him take it down, and the plaintiff should get relief by way of damages or his lot taken by the defendant James T. Penfield.

I find the value of the plaintiff’s lot to be $1,725.

I find, by the closing of Disbrow place by defendant J ames T. Penfield, that the lot was damaged in the sum of $575.

The plaintiff is entitled to $575 damages, or that his lot be taken by the defendant J ames T. Penfield for the sum of $1,725. This is in accordance with the opinion of the Appellate Division.

The plaintiff is entitled to costs against James T. Penfield.

The complaint as to Minnie Penfield should be dismissed, without costs. ¡Settle findings on notice.

Ordered accordingly.  