#### Sarah Catherine Jacobus, as Executrix and Trustee, and David S. Jacobus, Daniel C. Jacobus, Martin R. Jacobus and Robert F. Jacobus, as Executors and Trustees of and under the Last Will and Testament of Nicholas Jacobus, Deceased, Plaintiffs, *v.*Mary A. Willis, Defendant.

(Supreme Court, New York Special Term,

December, 1911.)

Injunction — Judgment — Damages in lieu of injunction.

Limitation of actions — Period of limitation — Actions involving land — Recovery of • possession — Short statute between adjoining owners in cities.

Reference — Questions and actions compulsorily referable — Referability of actions in equity or triable by the court —Actions — Injunctive relief.

Section 1499 of the Code of Civil Procedure applies only where adjoining owners of two pieces of land have erected buildings *592thereon whose walls abut one on the other and who have thereby apparently made a practical location of the boundary line.

Where plaintiff, the owner of an unimproved lot in the city of New York, suffered without objection the erection upon an adjoining lot of a building which encroached upon his land from one and one-half to two and three-quarters inches at the ground level and gradually increased to from four to nine and one-half inches at the top of the building, and the encroachment is unquestioned for many years, he will be denied an injunction to restrain its continuance.

The court, however, in lieu of a cessation of the trespass, may finally determine the controversy by directing, as adequate compensation, payment to plaintiff of the difference between the value of his property with and without the encroachment.

Where the estimate of plaintiff’s expert upon the question of damages, as shown on his cross-examination, seems excessive, an'd defendant has given no evidence on the subject, the court may receive additional proof or send the matter to a referee.

Action for an injunction.

Wendell P. McKown, for plaintiffs.

Delany & St. John, for defendant.

Guy, J.

Plaintiffs ask an injunction restraining defendant from continuing an encroachment by defendant upon plaintiffs’ property, or, in the alternative, damages suffered by plaintiffs by reason thereof. The property in question, ■belonging to the plaintiffs, consists of an unimproved lot, 25 feet by 100 in size, known as Ko. 14 West Sixty-fourth street, Manhattan borough, in this city. A survey, offered in evidence by plaintiffs, shows that the building erected by defendant in 1895, on the adjoining lot in West Sixty-fourth street, encroaches upon plaintiffs’ land one and one-half to two and three-quarters inches at the ground level and gradually increases to an encroachment of four to nine and one-half inches at the top of the building. The defendant proved that these conditions have been unchanged since 1904. Defendant moves for a dismissal of the complaint on the ground that, the encroachment having existed for more than two years, this action is prohibited by section 1499 of the Code *593of Civil Procedure. This statute applies only where the abutting owners of both pieces of land have built buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the dividing boundary. Bergman v. Klein, 97 App. Div. 15, 17; Volz v. Steiner, 67 id. 511, 512. The motion to dismiss must, therefore, be denied. In view of the fact that plaintiffs suffered the erection of defendant’s building without objection and has allowed it to stand unquestioned for many years, the court will refuse a mandatory injunction. See Knoth v. Manhattan R. Co., 187 N. Y. 243, 251-253; Bremer v. Manhattan R. Co., 191 N. Y. 334, 341; McClure v. Leaycraft, 183 id. 34, 44. A court of equity may take possession and finally end such a controversy by securing the payment of adequate compensation in lieu of a cessation of the trespass. New York City v. Dine, 185 U. S. 93-103, 108; Crocker v. Manhattan Life Ins. Co., 61 App. Div. 226, 231; Amerman v. Deane, 132 N. Y. 355, 361; Bates v. Holbrook, 67 App. Div. 25, 36; affd., 171 N. Y. 461, 471. The measure of damages is the difference between the value of the plaintiffs’ property with and without the encroachment. Crocker v. Manhattan Life Ins. Co., 61 App. Div. 226; Amerman v. Deane, 132 N. Y. 355. The evidence introduced by plaintiffs 'tends to show a damage of $4,500 to plaintiffs by reason of this encroachment. Defendant introduced no evidence on this point. This estimate of plaintiffs’ expert witness, as modified by cross-examination,■ seems very excessive, and I deem it necessary that further proof should be presented as to the extent of damage suffered by plaintiffs. I will, therefore, receive additional proof on that- point, or, if counsel prefer, send the matter to a referee to hear and report thereon.

Ordered accordingly.