THE

NEW YORK SUPPLEMENT

VOLUME 195

(119 Misc. Rep. 205)

SAPERSTEIN v. BERMAN.

(Supreme Court, Special Term, Kings County. August 12, 1922.)

1. Adjoining landowners 10(3)—Eminent domain ~2(1)—Statute as to enjoining spite fences not unconstitutional.

Real Property Law, § 3 (inserted by Laws 1922, c. 374), declaring that, on erection by a landowner of a fence more than 10 feet high, to exclude the owner of a structure on adjoining land from enjoyment of light or air, the adjoining owner thereby deprived of light or air may maintain action to have the fence adjudged a private nuisance, and if so adjudged its continued maintenance may be enjoined, does not deprive one of property without making compensation, but is a proper and lawful exercise of the police power.

2. Nuisance31-Removal of spite fence not ordered on preliminary motion. In an action to restrain the erection of a fence, in violation of Laws 1922, c. 374, § 3, a temporary injunction will be awarded to restrain the further erection of the fence; but, in view of the fact that the statute is a recent enactment, and that its validity presents a new question in this. state, the determination as to the removal of the part of the fence already erected will be left for the decision of the trial court.

Action by Philip Saperstein against Daniel Berman. Temporary injunction granted.

Emanuel Mehl, of Brooklyn, for plaintiff.

Max L. Kane, of Brooklyn, for defendant.

CROPSEY, J. [1] By chapter 374, Laws of 1922, which became effective March 30, 1922, section 3 was inserted in the Real Property Law (Consol. Laws, c. 50). It reads as follows:

"Fences and Structures, When Private Nuisance. Whenever the owner or lessees of land shall erect or shall have erected thereon any fence or structure in the nature of a fence which shall exceed ten feet in height, to exclude the owner or occupant of a structure on adjoining land from the enjoyment of light or air, the owner or occupant who shall thereby be deprived of light or air shall be entitled to maintain an action in the supreme court to have such fence or structure adjudged a private nuisance. If it shall be so adjudged its continued maintenance may be enjoined. This section shall apply to all such existing fences or structures but shall not apply to any action now pending nor shall it preclude the owner or lessee of land from hereafter improving the same by the erection of any structure thereon in good faith."

The plaintiff's property adjoins that of defendant's wife. Defendant's affidavit, however, speaks of it as his property, and no point is

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 195 N.Y.S.-1

made of the fact that his wife is not a defendant. Evidently the defendant is equally responsible with his wife for the erection of the fence in question. The papers and the photographs show the fence is built close to the dividing line between the properties, and extends from the ground more than 10 feet in the air, and is close to the side of plaintiff's building, in which there are windows. The fence was not completed at the time of the issuance of the order to show cause, which contained a temporary injunction. It is evidently the intention of defendant to erect the fence above the height of the plaintiff's windows. The fence is made of corrugated tin or iron, and the side of it towards plaintiff's property is painted black. The other side is unpainted. The effect of the fence is to exclude plaintiff from the enjoyment of light and air; and that it was built for that purpose seems plain, notwithstanding the denials of the defendant and his wife. The plaintiff's papers claim that he has an easement to the unobstructed light and air in his side windows by virtue of a paper claimed to have been executed by a former owner of defendant's property. The answering affidavits indicate there can be no merit in this claim. Upon the argument of the motion plaintiff's counsel said he did not base his right to relief upon that ground.

The general rule of the common law is that an owner may build what he pleases upon his own property, no matter what the effect may be upon the property of the adjoining owner, and that it is immaterial what his motive is in so doing. 1 Ruling Case Law, p. 399, title “Adjoining Landowners," § 38. But notwithstanding this general rule a number of jurisdictions have refused to follow it. And spite fences, so-called, have been declared to be private nuisances, even where there was no statute on the subject, when it was found as a fact that they were built solely with the wicked purpose of injuring the adjoining owner and not for the benefit of the person erecting them. Barger v. Barringer, 151 N. C. 433, 66 S. E. 439, 25 L. R. A. (N. S.) 831, 19 Ann. Cas. 472; Burke v. Smith, 69 Mich. 380, 37 N. W. 838; Peek v. Roe, 110 Mich. 52, 67 N. W. 1080; Norton v. Randolph, 176 Ala. 381, 58 South. 283, 40 L. R. A. (N. S.) 129, Ann. Cas. 1915A, 714; Hibbard v. Halliday, 58 Okl. 244, 158 Pac. 1158, L. R. A. 1916F, 903; Wilson v. Irwin, 144 Ky. 311, 138 S. W. 373, 42 L. R. A. (N. S.) 722; Bush v. Mockett, 95 Neb. 552, 145 N. W. 1001, 52 L. R. A. (N. S.) 736. The cases in New York that have been found on this subject are mostly old ones and seem to adhere to the common-law rule. Pickard v. Collins, 23 Barb. 444, 458; Mahan v. Brown, 13 Wend. 261, 28 Am. Dec. 461; Phelps v. Nowlen, 72 N. Y. 39, 28 Am. Rep. 93; Levy v. Brothers, 4 Misc. Rep. 48, 23 N. Y. Supp. 85; Adler v. Parr, 34 Misc. Rep. 482, 70 N. Y. Supp. 255.

The question here presented is: What is the effect of the new statute? Undoubtedly it is applicable to the facts presented, and in the circumstances shown it gives the plaintiff the right to maintain an action to have the fence adjudged a private nuisance and to have its continued maintenance enjoined. But defendant's counsel contends that the statute is unconstitutional; that it deprives a landowner of property rights without making compensation therefor. It is my opinion, however, that the statute is constitutional, and I think it is a proper and lawful exercise of the police power. Somewhat similar

(195 N.Y.S.)

statutes have been enacted in a number of the states, and their constitutionality has been uniformly upheld. The reasons for so holding are set forth at length in those opinions, and hence need not be stated here. Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 122 Am. St. Rep. 560; Healey v. Spaulding, 104 Me. 122, 71 Atl. 472; Horan v. Byrnes, 72 N. H. 93, 54 Atl. 945, 62 L. R. A. 602, 101 Am. St. Rep. 670; Scott v. Wilson, 82 Conn. 289, 73 Atl. 781; Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345. Some of these cases say that the fence must be practically a division fence; that is, that it must be on or close to the line of the property of the person who seeks to enjoin it. But, if that be necessary, the fence in question here is so located. Such legislation as that in question is wholesome. People should not live merely to annoy their neighbors, and those who do things solely for that purpose should be enjoined..

[2] Inasmuch as this is a new question in this state, I will not, upon this preliminary motion, require the fence to be removed. Whether or. not that shall be done will be for the trial court to decide. At the present time the further erection of the fence will be enjoined. Ten dollars costs to plaintiff.

Ordered accordingly.

(201 App. Div. 660)

FREAR v. LEWIS et al.

(Supreme Court, Appellate Division, Second Department. June 9, 1922.)

1. Attorney and client 190(4)-Evidence held to chow plaintiff's consent to discontinuance was in fraud of attorney and assignees.

Evidence that plaintiff had contracted to give his attorney one-fourth of the amount recovered by the judgment, that the attorney had rendered services of value and importance in prosecuting the action, that plaintiff had also assigned other interests in the judgment to his creditors, subject to a sequestration in support of plaintiff's wife's claim for alimony, and that plaintiff thereafter signed a consent to discontinuance of the action, stating to one of his assignees his purpose was to defeat his attorney's right to any compensation, held to show that the consent to discontinuance was in fraud of the rights of the attorney and of the assignees.

2. Dismissal and nonsuit 14, 18-Right to discontinue is not absolute.

Though as a general rule the party commencing an action may discontinue as of right, regardless of his reasons therefor, the right to discontinue is not absolute; but it is necessary to obtain the consent and order of the court permitting a discontinuance, and the court can prevent the consummation of a scheme to defraud by means of such discontinuance. 3. Attorney and client 190 (2)-Court has inherent power to prevent discontinuance in fraud of attorneys.

Courts have inherent powers to refuse discontinuance of a cause, when thereby the rights of attorneys under their contracts with their clients would be defeated, if the attempted discontinuance is intended to defraud the attorneys, in which case the court will permit the litigation to be continued by the attorney.

4. Action 35-Attorney and client 190 (2)—Statutory remedies given attorney are cumulative as to right to prevent discontinuance.

The statutory remedies given an attorney by Judiciary Law, § 475, are not exclusive, but are cumulative of the remedy under the inherent power of the court to prevent a discontinuance in fraud of the attorney's rights; and such discontinuance can be prevented where the client is insolvent and there is no showing he received any compensation for the discontinuance to which the statutory lien could attach.

5. Dismissal and nonsuit 20-Court, in ruling on propriety of discontinuance, can consider rights of those not parties to the action.

The court, in considering the propriety of permitting a discontinuance, can consider its effect on the rights of those not parties to the record, such as assignees of interests in the judgment, who will be defrauded, if the discontinuance is permitted.

Appeal from Supreme Court, Kings County.

Action by Frank B. Frear against Alfred H. Lewis and others. From an order denying plaintiff's motion to discontinue the action. without costs, on the ground that it would be in fraud of the rights of plaintiff's attorney, J. Noble Hayes, defendant Alfred H. Lewis appeals. Affirmed.

The following is the opinion of M. H. Hirschberg, official referee: The defendant Alfred H. Lewis moved at the Special Term of the Supreme Court, Kings County, Hon. James C. Van Siclen, Justice Presiding, for an order discontinuing this action, without costs, on a consent to discontinuance signed by the plaintiff March 12, 1919. The discontinuance was opposed by the plaintiff's attorney, J. Noble Hayes, as in fraud of his rights under a contingent contract for compensation for legal services performed in the action. The affidavits of the plaintiff's daughter, Mrs. Mildred L. Weatherby, and of a New Jersey attorney, Paul G. Roder, each assignees of a portion of plaintiff's interest in the subject-matter of the cause of action, were also submitted in opposition to the discontinuance.

On May 20, 1919, the Special Term made an order referring the matter to me as official referee, to take such testimony as might be offered by the parties and to report the same, with my opinion on the question "whether the aforementioned consent to the discontinuance of the above-entitled action made, executed, and acknowledged by the plaintiff on the 12th day of March, 1919, and delivered to the defendant, was given by the plaintiff and accepted by the defendant in fraud of the rights of J. Noble Hayes as attorney for the plaintiff, and the rights of others claiming an interest in the plaintiff's cause of action." Prior to the making of this order of reference the case had been referred to me as such official referee, to take and state the accounts between the parties, and it was while such reference was pending before me, and before the taking of testimony therein, that the plaintiff's consent to discontinuance was produced by the defendant's attorney and the motion for a discontinuance made, and that matter referred to me for a preliminary report thereon.

Consequently no testimony has been taken on the matter of the stating of the accounts between the parties, but I have taken such testimony from time to time as the parties have offered on the question presented by the attempt to discontinue, and that matter has only recently been finally submitted to me by the parties. On that hearing there also appeared before me one Thomas S. Doughty, as attorney for the plaintiff's former wife, and filed a certified copy of an order of the Supreme Court of this state purporting to sequestrate and attach any interest possessed by the plaintiff in the subject-matter of this action on account of the said former wife's unpaid alimony and he objected to the consummation of the said discontinuance as a fraud upon said former wife's rights. Neither the plaintiff nor any witness in support of the good faith of the consent to discontinuance were produced upon the hearings. The testimony of those questioning the good faith of this proposed discontinuance is therefore uncontradicted.

The action was instituted on or about January 29, 1910, for an accounting of the partnership affairs of the firm of Lewis & Frear. Prior to that time, and during a number of years, the plaintiff and the defendant Lewis had conducted as such firm a lucrative fire insurance agency and brokerage business, with offices in Brooklyn; but, dissentions arising between them, Lewis sought to dissolve the firm. and formed a new partnership with the defendant GenFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(195 N.Y.S.)

dar, under the firm name of Lewis & Gendar. The plaintiff then retained Mr. Hayes, and instituted this action against his former partner, Lewis, and against Gendar, for an accounting. Mr. Hayes' original retainer with the plaintiff was on a quantum meruit, but during the course of the litigation, and on January 5, 1912, the following written contract was executed between them:

"Frear v. Lewis and Gendar.

"This agreement, entered into this 5th day of January, 1912, witnesseth that, for and in consideration of professional services heretofore rendered in the above-entitled action, pending in the Supreme Court of Kings County for a partnership accounting and services agreed to be rendered by J. Noble Hayes, Esq., as my attorney and counsel in the further prosecution of the said suit up to the trial and entry of judgment therein, I hereby assign to said Hayes one-fourth (4) of any sum that I may recover on account of said claim or suit against the defendants or either of them, howsoever, either by settlement or judgment.

Dated this 5th day of January, 1912.

"Witness by Edwin Vandewater."

J. Noble Hayes. "Frank B. Frear.

The action was tried at the Special Term, Kings County, April, 1913, and judgment entered, dissolving the partnership of Lewis & Frear, but holding that the good will of the firm was of no value, and directing that the partner's accounts be settled before a designated official referee in Kings county. The plaintiff appealed, and on the appeal succeeded in obtaining a modification of the interlocutory judgment and findings to the effect that the good will was of some value, and awarding the plaintiff costs, payable from the assets of the firm, if any. See Frear v. Lewis, 166 App. Div. 210, 151 N. Y. Supp. 486.

In 1915 the case was again before the Appellate Division on an appeal by the defendant Lewis from an order permitting an inspection of the books and papers of the firms of Lewis & Frear and Lewis & Gendar for the purposes of said reference, and the court reversed the order as unnecessary, in view of the fact that the books could be produced before the referee by subpœna duces tecum. See Frear v. Lewis, 170 App. Div. 598, 156 N. Y. Supp. 794.

Thereafter hearings were had before an official referee in Kings county, and the referee ultimately held that the good will was only worth the sum of $1,100, being the average of one month's profits during the latter part of the existence of the partnership, and that the plaintiff was indebted to the defendant Lewis in a large sum as a balance on account. The plaintiff successfully opposed the confirmation of this report at a Special Term of the Supreme Court, Hon. Russell Benedict, Justice presiding. Judge Benedict wrote an opinion sustaining the plaintiff's contentions regarding the proper method of appraising the value of the good will of the firm of Lewis & Frear, and ultimately the order was made referring the case to me, to take and state the accounts of the parties.

It will readily be seen, from the foregoing statement of the history of this litigation, that the plaintiff's attorney had performed services of substantial value in a bitterly contested and extremely protracted litigation, and had succeeded in some of his contentions on behalf of his client, at the time that the client and the defendant Lewis soug' t to discontinue the litigation on the plaintiff's consent. It appears beyond question from the testimony taken before me that the plaintiff is financially irresponsible. His wife had obtained a divorce from him and a judgment for alimony at the rate of $10 a week in 1909, and with the exception of $700 obtained by her from the proceeds of a judgment recovered by plaintiff against Lewis in 1913, she has been unable to collect anything on account of that claim. She is a hopeless invalid, and apparently her only hope of ever realizing anything upon the large accumulated arrearage of unpaid alimony is through proceedings against plaintiff's interest in any judgment that may be recovered in this action, if the action is successfully prosecuted to judgment against the defendants.

February 28, 1916, plaintiff made an agreement in writing with one Paul Roder, a counselor at law of Newark, N. J., whereby, in consideration of professional services theretofore performed by Roder for plaintiff, and moneys