
    The Dime Savings Bank of Brooklyn, Plaintiff, v. Louise C. Butler et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1915.)
    Easements — when claim to, adverse — action to determine claim of defendant to negative easement — pleading — allegation contained in complaint not demurrable — Code Civ. Pro., §§ 1638, 1639.
    An unjust claim to an easement in real estate owned by another must be adverse to his ownership.
    A complaint, in an action brought under sections 1638, 1639 of the Code ■ of Civil Procedure to determine the claim of defendant to a negative easement or interest in the nature of an easement, which after alleging that plaintiff is the owner of the fee of the premises in question, that it became possessed of them through a judgment and sale in a foreclosure action, and that for one year next preceding the action it has been in possession of them, further alleges that defendants unjustly made claim to an easement or interest in the nature of an easement in the real property of plaintiff, such claim being tlat neither plaintiff nor its successors nor assigns can erect buildings on the premises except as described in a certain paragraph of the complaint, is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action.
    The allegations of the complaint that defendants’ eláim is unjust sufficiently comply with the requirements of the Code of Civil Procedure.
    Action to determine claim of defendants to a negative easement or interest in the nature of an easement in certain premises situated in the borough of Manhattan.
    Dykman, Oeland & Kuhn, and Edgar M. Cullen, for plaintiff.
    Gordon Knox Bell, for Marian M. Bell.
    Butler, Brown, Wyckoff & Campbell, for Louise C. Butler.
    Anderson & Anderson, for George D. Brewster.
    Geller, Bolston & Horan, for Farmers’ Loan and Trust Company.
    Samuel Hoff, for Sophie Liebman.
    Kurzman & Frankenheimer, for Emma H. Kaskell, et al., defendants.
   Cohalan, J.

Plaintiff brings this action to determine the claim of the defendants to a negative easement or interest in the nature of an easement in the premises at the southeast corner of Madison avenue and Seventy-second street, in the borough of Manhattan. The complaint is framed under the provisions of sections 1638 and 1639 of the Code of Civil Procedure. The material allegations therein are: That the plaintiff is the owner in fee of the premises in question; that it became possessed of them through a judgment and sale in a foreclosure action, and that for one year next preceding the action it has been in possession of them. The plaintiff then alleges in paragraphs fifth and sixth of the complaint that the defendants unjustly make claim to an easement — or interest in the nature of an easement — in the real property of the plaintiff, such claim being that neither the plaintiff nor its successors.nor assigns can erect buildings on the premises except as described in paragraph sixth of the complaint. The defendants respectively demur to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is novel and far reaching in its scope. It proposes by one fell swoop to forever determine rights arising out of restrictive covenants in all real property within the block bounded by Madison avenue, Seventy-first street, Park avenue and Seventy-second street. However, I am of opinion that there is sufficient precedent to sustain the form and the substance of the complaint. St. Stephen’s Church v. Church of the Transfiguration, 201 N. Y. 1. The objections to the complaint may be summarized as follows: (1) That the claims of the defendant are not adverse to the plaintiff; (2) that in an action under sections 1638 and 1639 of the Code the existence of a restrictive covenant cannot be determined, and (3) that insufficient facts are set forth in the complaint to show that the defendants unjustly claim an interest, easement or incumbrance in the plaintiff’s property. An analysis of the complaint disposes of the first objection. It alleges in brief that the plaintiff is the owner in fee of the land; that the defendants unjustly claim an easement, and that the claim is unjust. The term adverse is used in section 1638 of the Code, and the above allegations comply with the requirements of section 1639. An unjust claim to an easement in real estate owned by another must be adverse to the ownership of such an owner. The second objection proceeds apparently upon the theory that a restrictive covenant cannot create an easement. The case of Trustees of Columbia College v. Lynch, 70 N. Y. 440, authoritatively disposes of this contention in these words: “The right sought to be enforced here is an easement, or, as it is sometimes called, an amenity, and consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have done, and hence is called a negative easement, as distinguished from that class of easements which compels the owner to suffer something to be done upon his property by another. (Wash. on Easements, 5.) Easements of all kinds may be created and exist in favor of any third person, irrespective of any privity of estate, etc.” If a property right in an owner is limited, of necessity that limitation takes from that owner a property right, which is lodged in somebody else. It follows that that somebody else has an easement — or an interest in the nature of an easement — in the property. The allegations in the complaint that the defendants’ claim is unjust comply sufficiently with the requirements of the Code. No further pleading in this respect is needed. King v. Townshend, 78 Hun, 380; Ford v. Belmont, 69 N. Y. 567; Merritt v. Smith, 50 App. Div. 349; Vanderveer Crossings v. Rapalje, 133 id. 203. There is nothing revolutionary about this form of relief; it is a statutory action, which the Code authorizes in order to determine speedily any claim or claims to real estate. It is highly desirable and to the interest of all owners of property in this particular neighborhood that questions of easements and incumbrances shall be pressed for determination in just such an action. The locality must sooner or later succumb to change in the type and character of buildings to be erected there. The policy the statute is designed to promote is beneficial and enlightened, and it should be enforced so as to favor an action of this kind. Seneca Nation of Indians v. Appleby, 196 N. Y. 318; Bogert v. City of Elizabeth, 27 N. J. Eq. 568; St. Stephen’s Church v. Church of the Transfiguration, supra; Long Island R. R. Co. v. Garvey, 159 N. Y. 334. The demurrers are overruled, with leave to the defendants to serve answers within twenty days on payment of costs.

Demurrers overruled.  