Essanarr Garage Corp. v. Morelite Service Stations, Inc. 236 A.D. 700

Appeal dismissed, without costs. Since the judgment herein was entered, this court has determined, in Morelite Service Stations, Inc., v. Goldman (235 App. Div. 872, decided May 27, 1932) that New street is not a legally established street and that the defendants would have no easement thereon of light, air or access as a matter of law. Their place of business has been as effectually closed by the erection of a fence preventing access thereto as could possibly happen if an injunction were granted. The plaintiff’s cause of action is based on the theory that New street is a public thoroughfare and that it is seized of a dominant easement appurtenant to the premises, including a free and unobstructed right of way and access over and along and upon New street. This fundamental proposition has been determined to be unsound. The question has become academic. If the plaintiff has suffered monetary damages its remedy is by an action at law. Present — Lazansky, P. J., Kapper, Hagarty, Scudder and Davis, JJ.