#### George Crocker, Plaintiff, *v.*The Manhattan Life Insurance Co., Defendant.

(Supreme Court, New York Special Term,

June, 1900.)

1. Encroachment — Wall of building, encroaching at a point above roof of lower adjoining building, not required to be removed — Damages.

Where the wall of a lofty building encroaches a few inches upon the air space over a lower adjoining building, the remedy of the adjoining owner is in damages only, and the court will not compel the owner of the lofty building to remove the encroaching wall where that would entail enormous expense, without corresponding benefit to the adjoining owner.

2. Same —■ Permanent right to maintain encroaching cornices and shutters prevented.

Where it was admitted that ornamental cornices and swinging iron shutters of the lofty building were encroachments, the court enjoined the owner thereof from continuing them in their existing position whenever the adjoining owner or his grantees desired to build on his lot, and also required the said owner to execute an instrument, to be approved by the court, declaring that it claimed no right to have the cornices and shutters remain permanently in their present position.

Action for an injunction.

Hawkins, Delafield *&*Sturgis (Eugene D. Ha'wkins, of counsel), for plaintiff.

Holmes, Rapallo *&*Kennedy (Edward S. Rapallo, of counsel), for defendant.

Lawbence, J.

After examining the testimony given by the different surveyors and the surveys put in evidence in this case, I am of the opinion that it has been proven that the southerly wall of the defendant’s building overhangs the point on Broadway which is distant 204 feet and inches southerly from the southeasterly comer of Broadway and Wall street, at the roof of No. 70 Broad*688way, about two and five-eighths inches. This would not bring the line of the defendant’s northerly wall over the plaintiff’s true southern boundary line, because the deed of the plaintiff makes the commencement point in the description of the property 204 feet 3 inches from the southeasterly corner of Broadway and Wall street. The only witness who testifies that the plaintiff’s building stands upon the same line called for by the deed is Mr. Ford, who in that respect differs from all the other surveyors who were witnesses for either the plaintiff or the defendant. He still makes the southwest corner of the plaintiff’s property 204 feet and 3 inches southerly from the southeasterly corner of Broadway and Wall street. Van Horn, the plaintiff’s witness, makes that corner 204 feet inches. F. E. Towle, Sr., and F. E. Towle, Jr., and Rudolphe, witnesses for the defendant, make it 204 feet and 6| inches, and Stevenson Towle, another witness for the defendant, makes it '204 feet and 6 inches. It is claimed by the learned counsel for the plaintiff that Mr. Ford possesses some peculiar data from which his opinion or statement as to the true point at which the northeasterly corner of Broadway and Wall street is to be found is entitled to more weight than that of all the other surveyors. I do not find any legal proof of this statement, and I conclude, therefore, that the plaintiff has failed to show that the defendant has encroached upon the line called for by his deed, at the Broadway end of the plaintiff’s property. The evidence does not establish to my mind that the plaintiff has acquired title to any land beyond the points mentioned in his deed, either at the Broadway or Rew street end of his property by adverse possession. If the plaintiff’s wall has moved in consequence of the excavation made to the south of his line on Broadway, and the defendant, by building its wall, has restored the line of the wall to its true position, the plaintiff or his predecessors might have maintained an action for the trespass, but that fact alone presents no case for an injunction. ,1 am of the opinion also that the evidence establishes that from the roof of the defendant’s building to the roof of the plaintiff’s building, at the Broadway end, the defendant’s north wall overhangs the plaintiff’s true southerly line by three and one-eighth inches at the first cornice, at the second cornice, three and three-quarter inches, and at the third cornice, four and three-quarter inches. Also, • that the defendant’s northerly wall extends over the plaintiff’s southerly boundary line, at the Rew street end, one and one-eighth inches, *689at the roof of the plaintiff’s building, and that from that point the defendant’s wall is plumb. Upon this state of facts, as the principal encroachment is in the air, I am of the opinion that the case which is presented is purely one for compensation, and that as this action has been brought upon the equitable side of the court, while the plaintiff should be afforded proper compensation, it would be most unjust to the defendant to order it to take down the northerly wall of its building, or such part as may be necessary to remove the encroachment. The evidence shows that to take down that wall would subject the defendant to enormous expense without conferring upon the plaintiff any corresponding benefit. The principal encroachment is at a great height, and it is questionable on the evidence whether it will materially lessen the rental or fee value of the plaintiff’s property. It is conceded by the defendant that the ornamental cornices and swinging iron shutters project over the plaintiff’s southern boundary line. The shutters were placed there, as is claimed by the defendant, in obedience to chapter 275 of the Laws of 1892, section 491. The defendant offers to enter into any obligation which may be required to show that it makes no claim in consequence of the location of the shutters and cornices to have acquired a permanent right to- keep them in their present location or to obtain an easement in respect to them in the plaintiff’s land. I conclude, therefore, that the proper judgment to be rendered in this case will be to enjoin the defendant from continuing the cornices and shutters in their present position whenever the plaintiff or his grantees shall require them so to do if the plaintiff or his grantees should desire to build upon the premises known as No. 70 Broadway. The defendant should also be required to execute an instrument to be approved of by the court, declaring that it makes no claim to any right to have said cornices and shutters remain permanently in their present position. The plaintiff, too, is entitled to be compensated for the damages which he has sustained by reason of the encroachment of the defendant upon his boundary line, as above stated. On the evidence before me, it is most difficult to determine what that compensation should be, but after considering the expert testimony produced by the parties, I have reached the conclusion that $5,000 would not be an excessive amount to be paid by the defendant to the plaintiff. The judgment will provide, however, that the plaintiff shall execute and deliver to the defendant upon the receipt of that sum, a release *690for all damages which he may have sustained by reason of the encroachment. If that is declined by the plaintiff, then, as it is not always incumbent upon the court to grant an injunction where its allowance would produce vast injury to the defendant without corresponding benefit to the plaintiff, I think that I ought, in the exercise of my discretion, to refuse the plaintiff equitable relief and remit him to his action at law. Amerman v. Deane, 132 N. Y. 355; Garvey v. L. I. R. R. Co., 159 id. 323, 333; McSorley v. Gomprecht, 30 Abb. N. C. 412, and cases cited. Draw decision and judgment in accordance with these views and settle on three days’ notice.

Judgment accordingly.