Pagano v. Kramer, 21 N.Y.2d 910, 236 N.E.2d 858, 289 N.Y.S.2d 626 (N.Y., Apr 03, 1968)

     
      

Court of Appeals of New York.

Rosario PAGANO et al., Respondents,
v.
Abram KRAMER et al., Appellants.


April 3, 1968.


 Plaintiffs brought action to enjoin defendants, including defendant who
acquired realty in question by tax deed from city, from interfering with alleged
right-of-way of plaintiffs over roadway on the realty and tocompel the removal
of obstructions thereon.  The defendants asserted, as a separate defense, that
if any right-of-way existed it was extinguished by a judgment obtained by the
city foreclosing tax liens on the realty.  The Supreme Court, Special Term,
Kings County, Philip M. Kleinfeld, J., 47 Misc.2d 235, 262 N.Y.S.2d 53, entered
a judgment dismissing the complaint, and the plaintiffs appealed.  The Supreme
Court, Appellate Division, Second Judicial Department, 25 A.D.2d 887, 270
N.Y.S.2d 517, entered an order May 31, 1966, which reversed on the law and the
facts, the judgment of the Special Term and remitted the action to the Special
Term for the making of an appropriate judgment.  The Appellate Division held
that though plaintiffs had not established any right to the use of entire lane,
they had established a prescriptive right to the use of a walk 63 feet in length
and 4 feet in width over side of lane immediately adjacent to plaintiffs'
property, and that the plaintiffs had a permanent easement over the walk.  The
defendants appealed to the Court of Appeals.  The Court of Appeals held that
provision in tax deed from city to one of the defendants explicitly stating that
conveyance of realty was subject to a private right-of-way easement, though it
could not create any easement, did preserve plaintiffs' easement by prescription
which might otherwise have been extinguished by tax foreclosure sale.

 Order of Appellate Division affirmed.


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Provision in tax deed from city to one of the defendants explicitly stating that
conveyance of realty was subject to a private right-of-way easement, though it
could not create any easement, did preserve plaintiffs' easement by prescription
which might otherwise have been extinguished by tax foreclosure sale.
 ***627 **859 *911 Sylvan D. Freeman and Samuel Kirschenbaum, New York City, for
appellants.

 C. Benedict Mauro, Ozone Park, for respondents.



 PER CURIAM.

 In this action to establish a private easement to a 4-foot strip of land
adjacent to plaintiffs' property and to enjoin defendants from interfering with
the easement, we agree with the Appellate Division that plaintiffs obtained an
easement by prescription.  Appellants contend that the foreclosure sale for
unpaid taxes extinguished the easement since the tax levy predated any
prescriptive easement which plaintiffs might have established.  Assuming this to
be so, nevertheless, the tax deed from the city to appellant Kramer explicitly
stated that the conveyance of the property was 'subject to a private Right-of-
Way easement'.  While this language could not Create any easement, it did
Preserve plaintiffs' easement by ***628 *912 prescription which might otherwise
have been extinguished by the tax foreclosure sale.

 The order should be affirmed, with costs.


 FULD, C.J., and BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN, JJ.,
concur.

 Order affirmed.

289 N.Y.S.2d 626, 21 N.Y.2d 910, 236 N.E.2d 858

END OF DOCUMENT