Opinion
May, 1928.
Judgment reversed upon the law and the facts, with costs, and judgment directed for plaintiff, with costs. It appears from the decision of the learned trial court that plaintiff would be entitled to judgment as prayed for in the complaint except for the fact that she made no attempt, to quote from the opinion, "to restrain the erection of the garage, although there was ample time to do so before it was completed." In view of the statement by the learned trial court at the close of the case that "This woman protested against it, I have no doubt, and still he went on and erected that garage," we construe the statement of the court, in the opinion, to refer to the commencement of an action. We are of opinion that plaintiff was under no obligation, under the circumstances, to commence an action. It appears from the testimony of defendant Elkune Fischer that before building the garage he examined the deeds in the register's office and was conversant with all the facts. He built the garage in its present position at his peril. Further findings, if necessary, will be made. Lazansky, P.J., Kapper, Hagarty, Carswell and Scudder, JJ., concur. Settle order on notice.