Kurt Bardach et al., Respondents-Appellants, v. Mayfair-Flushing Corp., Appellant-Respondent, et al., Defendants

Kurt Bardach et al., Respondents-Appellants, v. Mayfair-Flushing Corp., Appellant-Respondent, et al., Defendants. [MAJORITY] In an action by tenants of an apartment house for a judgment declaring their right to the use of an adjoining vacant parcel of real property owned by defendant Mayfair-Flushing Corp., and for injunctive relief, the parties cross appeal as follows from a judgment of the Supreme Court, Queens County, dated August 19, 1960, and entered August 29, 1960, after a non jury trial: (1) Defendant Mayfair-Flushing Corp. appeals from the entire judgment which, inter alia: (a) declares that plaintiffs, “in common with all persons now tenants or who may hereafter become tenants ”, have an easement in certain real property for vehicle and pedestrian traffic, light and air, and use as a garden, recreation and play area; and (b) enjoins defendants from interfering with such easement. (2) Plaintiffs appeal'from so much of said judgment as denies them an extra allowance, pursuant to section 1513 of the Civil Practice Act. Judgment modified on the law by deleting from subdivision 1 of the third decretal paragraph the words “or who may hereafter become tenants ”. As so modified, judgment affirmed, without costs. The findings of fact contained in the decision of the Special Term are affirmed. In our opinion, based upon the findings, the judgment should restrict the benefits of the easement to those who are now tenants in the subject premises. Nolan, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur. [26 Misc 2d 32.]