Opinion
October, 1935.
Judgment for defendant in an action for an injunction to restrain defendant from interfering with plaintiff's use of a driveway between plaintiff's and defendant's houses reversed on the law and the facts, with costs to appellant, and judgment directed for plaintiff, with costs. Findings of fact numbered 3, 4 and 5 are reversed and the conclusions of law are disapproved. Plaintiff's proposed findings of fact numbered IV, VIII, IX, X, XI, XII, XIII and XIV are found. Defendant obtained title through several mesne conveyances from the first mortgagee, who purchased the property at a foreclosure sale. Therefore, defendant acquired title as of the time the mortgage lien was created. ( Naccash v. Hildansid Realty Corporation, 236 App. Div. 686.) It appears, however, that when the original owner applied to the Bond and Mortgage Guarantee Company for a loan to finance the erection of a house on each lot, he submitted plans showing the driveway between the house now owned by plaintiff and the one now owned by defendant, and the loan secured by the mortgage on each was made in reliance upon the plans. In addition, the complaint in the foreclosure action on the parcel now owned by defendant, as well as the referee's deed, recognizes plaintiff's easement in the driveway by reciting that the premises are subject to any change in physical condition since the date of a certain survey, which was made before the execution of the first mortgage. It is agreed the only change subsequently made was the erection of the houses with the driveway between them. The intent of the parties to the mortgage is further evidenced by the fact that immediately after the erection of the houses the mortgagee recorded an instrument declaring its "approval of the manner in which the homes were constructed." Under the circumstances plaintiff has an easement in that portion of defendant's property which is used for the driveway. ( Wells v. Garbutt, 132 N.Y. 430 ; Smith v. New York Central Railroad Co., 235 App. Div. 262; Amalgamated Properties, Inc., v. Oakwood Gardens, Inc., 238 id. 867, affg. 148 Misc. 426.) Hagarty, Scudder, Tompkins, Davis and Johnston, JJ., concur.