The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-06-19
THE COURTS.
Stating the Law Of Right to
Light and Air.
JUDGE FREEDMAN ON CONTRACTS
A Few Pertinent Remarks on the
Instalment Plan.
THE HEALTH BOARD PENALTIES.

william D. Shpmap, rs assignee OF w. D. Duncaus
who owned interest in the premises No. Fn ave.
nue. brought a SUIT against Nathan p. Beers, the
owner OF No. Filth avenue to have him restrained
from so building hrs lot as TO obstruct the hight OF
side windows IN the building No overlooking lot No.
B. Judge Barrett rendered 9 decision IN favor Of the
defendant yesterday and In brief opinion states very
clearly the law . subject OF much interest 70 prop
erty owners follows
.Itis CONCEDED that, as between adjoining owners
who are strangers to each other, one docs not. by
building on the line OF his ground, acquire right
10 light from his neighbours ground. II is claimed,
however. that II both propretors obtain their title
from a common source, the same granor having con-
vcyed the tenement with windows aud the
ground overlooEiEg another the windows cannot be
INSTRUCTED This claim based upon me dicta OF
Judge scden, in Lampman Mills, q n. T., sos.
and IL certainly favored by Aessrs. Tyler and Wash
burn in their treatses Inc weight of authority, how
ever, this State decidedly the other way Tho
precise point was discussed in Myers vs. Grimmei 10
Barb., o37, and II was there held thai the landlord
might lawfully darken stop the windows by
any erection the other lot that such an
was not IN derogaton OF nis own
grant, and that he could not he restrained by
from so doing. So in Palmer Wetnoro = sand,
3l6, decided that landlord who owns a lot
adjoining the premises has right TO build
such land, though he may thereby obstruct and
darkcn windows the tenement dcmiset Chief
Justice Oakley SAID that If the land
loru would be deprived OF the ul benefit oil mis-
property. we perceive, he adds, no reason why
landlord IN respect OF his tenant is more restricted
as 10 his vacant lots than he would DE respect OF
any other owner Tor years or Ice OF an adjacent
house In Doyle Lord, "a n. y, 459 these cases
were approved of By Judge Earle who observed
that under these authorities II tho lessor had sold
the and lot upon which 1t stood, 25x5l eet the
the balance of the iot In thai case the grantor
could have built upon the balance Of the lot and thus
have darkened the windows IN the store. without vio
lating any rights OF the grantee The same rule now
appnes IN Massacb usetts In the case OF Keats VS.
Hugo 10 Mass 2o4, u was explicitly held that me
grant Of an easement OF hight and AR Is not implied
from the grant OF house having windows overlook
ing land retained by the grantor. ne cases
OF Palmer Wetmore and Myers vs.
Grmmel were cited with approval, and the
aicta oil Justice Selden in Lampman vs. Mills rejected
obter II is true that the question one OF INTENT
but the absence vi any covenant that is not TO be
presumed from the mere existence Of the windows
Such intention be evident and palpable,
from mere Inspection the Jauncey court ustra-
lien referred To Myers GrmmcL The lntant 10
limit the use Of vacan. space Will not be lightly i'm
piled In the bar the intention to AFFORD No
Filth avenue the advan. agc OF these additional win
dows only until II became convenient TO build upon
claimed by the plaintiff. The logical result Of that
claim is that in case no building at all had been
ed No Fltsh avenue and windows IN the
northerly wall oil No. l Filth avenue had been ex
tended all along the Of the building the entire
adjoining lot would have to remain perpotuaiy vacant
al all events that structure could ever DC erected
thereon when would interfere with those windows
The motion TO CONTINUE the injunction must therefore
be denied and the temporary injunction dissolved with
$40 costs"
WHEN CONTRACTS ARE BINDING.
Judge Freedman, Of the Superior Court yesterday
rendered very elaborate opinion the OF Ben
jamin Dlerz against John l. Farish tried before him
some time aso at SPECIAL Term OF the Superior Court
TIE iacls OF the appear be follows:-Dletz
had bought some property foreclosure, and
Apr,i &c. 1875, he vas n negotiation with John 7.
Farsh to sell hun the properly. They met on that
date at the ofiico OF friend and finally agreed on
price Of SIS, ooo s. 600 OF which to be paid down
at once. They both signed duplicate contracts
ana handed them over 10 Mr. Pei! VINO ,
had them in mis- hands. a suggestion was
made mat defendant before delivering Inc contract,
hS sse ' drew own k o. and NE
party adjourned around TO Andcrson's, defendant
lfarish) Keeping the consrsct and the check.
They waved some time at Andersons, wnen
Fsrish, 1etti ng impatient, called the cashier,
tod nim The Arrangements had been made, ana
that in case Mr.. Anderson approved the contract,
u, with the 1000 check, was 10 be handed to Farsh
The cashier Cancelled the receipt on one OF tho con-
while 'onger, asked the cashier for ono OF tho
tracts The cashier al hrst objected but on plaintiff
insisting That me OF the Obligations belons cd 10 him
finally ga up The with the cancelled receipt.
Anderson refused TO approve the contract there
upon Diez brought a SUIT ON the contract which no
had thus Obtained Tor spccinc per ormance On the
iral as Claimed that The contract having boon de-
lvered oy an agent OF the defendant no further
evidence. could be taken annui II or vary its
terms. Judge Freedman, in view OF the broad CAIN
oil the palntih, examines, nj great length, the
law as TO the conditions under which a contract De-
comes binding A contract, he holds, Oecom con-
tract MY when the Dds the parties agreed
all It's terms He recognizes the rule that Tor public
poNcy Is sake wncn written contract is Delivered IN
snaily by one party TO the other any conditions
not " udcd IN the contract cannot DO proved But
he ods that this IS an exception to the general rule
that there must be a complete agreement before
cont ract IL ondngand Is contne a. the case where
The written contract has been Intentionally given
the other side Tor himself He cites the modern doc
rlne oil delivery ana escrow, whore delivery to
agent OF The other side even TO tho party himself II
made really an escrow, ned not TO be finding unit III
the conditions of the escrow are ulnlled ana this
TO the plaintiff, with intention that he should hold
II. ana therefore vald contract In the second
place he holds that portion OF the property con-
tracted Tor being IN dispuie-owlng 10 the rather
doubtful surveys oi the old common lands OF New
York-thc plaintiff had marketable tito to tho
whole OF the property ne proposed TO convey, and
therefore that ground the comp shouid be dts
missed
+ BOARD OF HEALTH PENALTIES.
The Board Of Health brought suit against Mary
Pinckney a fine Of $50 for having failed to
comply with its order 10 make certain changes in the
construction OF buildings owned by her These atera-
tions would have involved expense of about BIS
The Board beaten the trial, then appealed to
the General Term OF the Court OF Common Pleas ana
was again beaten In the same court yesterday coun-
sci Tor The Board OF Health asked Tor
the and, should the Court abide by It's former
cison then for ,eavc TO 90 To tie Court Of Appeals
Unless THIS privilege was gwen him. counsel sad, tho