The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-05-26
The Building Laws.
INJUNCTION AGAINST THE EAST RIVER BANK.

SUPERIOR COURT.
MAY % -Henry f. Tll1nddge and others the East
hirr Bank This ha wing been argued by Messrs.
Hugh Maxwell and Mott for plaintiffs and by ex-Chef
Justice Jones for Defendants the folio wing decision
was given by Judge Campbell
An in junction order was granted on the complaint OF
the plaintiffs alleging that the East River Bank had
chased certain premises the northeast Of Third
and St. Marks place. in the city and about
tearing down the present building for the purpose Of
erecting banking house, which should extend to the
northerly line OF Eighth street St. Marks place,
originally laid out the commissioners map and that
such building, when erected would project or extend
eight feet beyond the houses of the plaintiffs and Others
of property Eighth street st Marks place.
between the Third and Second avenues; and they fur
Their charge that than twenty years ago Thomas
Davis then being the of the property both sides
of St. Marks place, and being DESTROYS Of selling the
same portions and erecting or causing to bs erected
houses thereon and to sell the same agreed and spu
lated that the north line Of said street should virtually be
extended eight feet further north that all the houses
venpg space between said line and the north line of the
street. originally laid out court yard, aad fur
iher that in pursuance Of said agreement and in c,n-
formty thereto all the houses placed back eight
feet, including the house the premises in question
and that this done nearly quite twenty
The complaint further states that the houses this
street large and expensive and the value of property
the street and its beauty much increased by Of
open court yards and this virtual in the
width Of the street. and they insist that the space of
eight feet set apart and dedicated to the OF the
public and cannot be reclaimed The defendants in their
affidavit say that they do not believe any such agree
ment st pulation made by Mr.. Davis, and they
urge reason that before the time Of the alleged
maklpg OF the agreement he conveyed the property
question to Mr. Henriques and that by such convey
ance the southern boundary Of the premises the
northery line of Eighth street laid down. aud not the
line sought to be established eight feet u the north
Of such original north line Of the street. They further
show that the premises after the erection Of the
buildings thereon about that time were mortgaged
by the then owner to the jackson Marine Insurance
Company and that in and by such mortgage the soath
ery line of the property was described the north line
OF the stree "a laid down; aad further, that fore
closure of such mortgage the masters deed conveyed to
the said insurance company the premises described in
the mortgage that the insurance company conveyed to
ths gr.ntor Of the defendant; by the boundary,
and that such grantor by the boundary cosveyed
to the defendant and that throughout in ala the chain
OF Tor more than twenty years. the uniform
description of the premises bounded then the south
erly side by the n0rthery line Of the street. The de-
PENDANTS III 1884 the period when the mortgage
Insurance company and under which the
company afterwards obtained title, aud the defendants
state that this time 1884 no buildings had been erect
ed the premises. In 1886 the company OBJ
tanned by sale under foreclosure the fee OF the pro-
periy aud in 1874 they sold the premises to Caleb o.
Has;ed the Defendants grantor In the conveyance to
Hssteo there is the following csuses-The premises
hereby conveyed including certain court yard Of about
eight feet in Width laid of on the souhsrly side there
Of" The complaint charges that the deed from Mr..
Hssd 80 the defendants contained clause making the
grant 10 ssid defendant 'subect to all existing re.
srctcns and covenants in relation to keeping the said
court yard perpetualy court yard
street. II IL denied by he defend that there Il
such clause The deed was used in the argument and
the clause in question: contained in the deod do not
find In the papers before me- but was, rs understood
in substance that the grant subject to such cove
be very material whether the clause contend
ed for by the plaintiff set forth in the deed The
agreement and If 60 what was tS As matter Of facs
entertain doubt the subject far the proof
Is before it Is not full and complete and yet the cir.
cumstances actually existing Of . marked and 1t
seems to me- an unanswerable character new street
proved elegant and xpensve houses
extending from to except the premises in
question: all set back eight feet and ali using space
for court yard Mr. Davis the owner and builder Of
these houses he the former OF the premises
I'M tho nvQd
made to conform to the plan of ell tho other
when the first deed thereafter is given that is after the
yard being part Of the premises included in the
veyance. The mortgage to the insurance company. and
which probably given before the execution Of the
buildings, contained NO reference to court yard,
then none existed the masters deed, OF course,
followed the description in the mortgage When, how
this court yard Special mention made that the bounda
res include this court Yard 1t is apprehend the same
mode which would be adopted in other conveyance OF
premises in st. Marks place. The property would be
conveye bounded the original north line Of the
street. and the conveyance would include the court yard
subject however, to urban servitude subject TO the
right Of his nsghbor to insist that he shall It for no
other purpose Recurring again Ia the complaint and To
the affidavit which the motion Is made to dissolve the
iDjuncon-the complaint alleges expressly that there
an agreement that all the buildings should be set
back eight feet the affidavit says that ths defendants do
not believe that such agreement was made; my own
opinion is from the facts and circumstances t forth in
the complaint and adavits that such agreement was
been BY parole but it executed and carried into
effect by the erection Of the buildings eight feet back
the whole block. II IL not the Of Wolfe Frost
SANFORD Oh g. r. where such On agreement upsxecased
was sought to be enforced 1t Is one thag to enforce
such agreement when made by parole; Is another
attempt to violate It after 1t has been executed Intent
may always enter largely into questions Of dedcaton
and where the intent manifested BY agreement ex
ecu.ed, the time becomes parstively mmateral In
respect to all these houses and lots on st. Marks place
II TO that they must be considered esch with
respect to the Others servent tenement to the ex
of the space in front denomnaed the court yard
1t Is species of easement which each enjoys Ia
the property Of his neighbor The motion to dissolve tn,
Injunction must be denied, with ten dollars costs and
an may BE- entered continuing the injunction unit
| the hearing Of the cause