White Cap Sea Foods, Inc. v. Panzner 1 A.D.2d 963

Appeal by defendant from so much of a judgment decreeing, inter alia, that plaintiff is entitled to the use of the waterway lying to the east of plaintiff’s premises for reasonable ingress and egress of craft for loading and unloading cargo alongside and parallel with plaintiff’s dock, that defendant remove a catwalk along plaintiff’s dock, and poles in the waterway which interfere with plaintiff’s use of the dock, and enjoining defendant from interfering with the use of the waterway by plaintiff. Appeal by plaintiff from the judgment insofar as it fails to award damages, and from the decision. Judgment modified on the law by inserting in the second decretal paragraph after the word “dock” the words “but plaintiff’s *964right to use the waterway or canal as it existed on March 16, 1889, shall in no way interfere with defendant’s right to the free and unobstructed use thereof at all times”. As so modified, judgment unanimously affirmed, without costs. The findings of fact are affirmed. The modification is required by the terms of the deed which gave rise to the present plaintiff’s right to use the waterway. Appeal from decision dismissed, without costs. No appeal lies from a decision. Present — Nolan, P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ.