Summary
In Pagano v. Kramer (21 N.Y.2d 910) the court found there was an easement by prescription and the issue was whether a foreclosure for tax arrears extinguished the easement since the tax levy predated any prescriptive easement the plaintiff may have established.
Summary of this case from Sterrer v. GenoaOpinion
Argued February 19, 1968
Decided April 3, 1968
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, PHILIP M. KLEINFELD, J.
Sylvan D. Freeman and Samuel Kirschenbaum for appellants.
C. Benedict Mauro for respondents.
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 prescription which might otherwise have been extinguished by the tax foreclosure sale.
The order should be affirmed, with costs.
Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING, BREITEL and JASEN concur.
Order affirmed.