Real  Estate   Record





AND BUILDERS' GUIDE.





Vol. XX.





NEW YORK, SATURDAY, JULY 14, 1877.





No. 487





Published Weekly by

TERMS.
ONS YEAR, in advance—SlO.OO.
Communications should be addressed to

C. IV.  S'WEET,
Nos. 345 AND 347 Broadway





A NEW FEATURE.

A reference to our New York City list of trans¬
fers of real estate will show a new f eatm-e, the
value of which will at once be recognized. Deeds
of property filed at the Register's office do not
usually tell anything about whether the lot is im¬
proved or vacant, hence the information is so
provokingly meagre that no intelligent idea of
the value of property can be gathered from the
sale, as published.

The column of ti-ansfers, as now given in
The Recobd, supplies this want. We now give
the street number of a house, and a full descrip¬
tion of the character of the improvement on the
property, telling whether it is a factory, coal-
yard, tenement or a fii-st-class brown stone dwel¬
ling, and, if there is no buUding, we describe it as
a vacant lot. In addition .to this, the date of the
deed is given, and the amount of mortgage on
the property. This additional information costs
us a great deal of labor and trouble, but we are
determined to make The Recoed the best real
estate and builder's paper that was ever published.

The present number is the second number of
our twentieth volume. When we commenced we
thought sixteen pages would be too much for the
matter we designed furnishing, but the event
proved that twenty-f om- and even twenty-eight
pages were too few. We can fairly claim to have
the most perfect paper of its. kind in the coimtry.
No other journal can hope to compete with us in
our specialties. All this makes The Recobd of
very great value as an advertising medium, and
should really give us an advertising patronage of
at least twelve pages. That it is less than that
makes it so much the better for those who now
send in their orders.





ANCIENT LiaHTS.
An interesting case on the sub.iect of ancient
lights has recently been decided by Judge Barret,
in which an application for an injunction was
made to restrain a party from building so near
the plaintiff's house as to obsti-uct the light of the
side windows in the building knowh as No. 1 Fifth
avenue, overlooking No. 3 Fifth avenue. The
English doctrine was invoked, according to which
the quiet and uninterrupted enjoyment and pos¬
session of window lights for twenty years is suf¬
ficient ground for a jury to presume a covenant,
provided the evidence be such that the owner of
the adjoining premises had knowledge during that
period of the fact. The knowledge of the tenant
alone is not enough for this purpose. Kent says
that the elements of air and light are rights or
incidents attached to the enjoyment of real estate,
and the law gives weight and effect to the first
Appropriation .of ihepa.    They may be classed





under the head of incorporeal hereditaments,
which comprise certain inheritable rights, which
are not, strictly speaking, of a corporeal nature,
or land, although they are by their own nature,
or by use, annexed to corporeal inheritances and
are rights issuing out of them, or concei-n them.
A numerous class of incorpoi-eal hereditaments is
embraced under the designation of easements,
and consist of a right in the owner of one parcel
of land, by reason of such ownership, to use the
land of another for a special purpose not incon¬
sistent with a general property in the owner.
One of the most important rights and privileges
which are embraced under the name of easements
is that of light and air, or of having light or air
come iminterruptedly to the dominant estate (the
pai-cel to whose ownership the right is attached)
over and across the servient estate (the parcel
over which the right is to be exercised). In
England the plaintiff wiU unquestionably have
a right of action where there is a substantial
privation of light sufficient to render the occupa¬
tion of the house uncomfortable, and to prevent
the plaintiff from carrying on his accustomed
business on the premises as beneficially as he had
formerly done. In this country the English doc-
ti-ine with respect to ancient lights has not gener¬
ally been adopted. In one case the reasoning of
Judge Bronson tends to disprove the existence in
this State of the modern English doctrine on the
subject of lights. He thinks it cannot be appKed to
the growing cities and villages of this country
without working the most mischievous injustice.
As Judge Barret remarks, in his opinion, the
weight of authority in this State is decidedly op¬
posed to the English doctrine, and he cites a case
in which it was held that the landlord might
lawfully darken or stop the windows by any erec¬
tion on the other lot; that such an act was not in
derogation of his own grant, and that he could
not be restrained by injunction from so doing.
Chief Justice Oakley, in another case, said, if an
owner of a lot has no right to bmld thereon,
though the windows of the adjoining premises
may thereby be obstructed and darkend, he
would be deprived of the full benefit of his prop¬
erty; and, in the case of Parker vs. Foote, the
Supreme Court went so far as to declare that the
modern English doctrine on the subject of lights
was an anomaly in the law, and not applicable to
the condition of cities and villages in this
country. Tha injury resulting from window
views was deemed rather specvdative, and not
analogous to the case of ways, watercourses, etc.,
where the injury was direct, palpable and mate¬
rial.





LE(3^AL DECISIONS.





COMPELLING PUKCHASER TO TAKE PROPERTY SOLD
UNDER FORECLOSURE.

A motion made in behalf of the Mutual Life
Insurance Company to compel the purchaser at a
foreclosure sale to take the property has been
denied by Judge Barret. It appeared that soon
after the purchase the premises caught fire, and
were damaged to the extent of $3,000. The
Judge applies the well known rule that where the
property purcliased is so injured as to be greatly
damaged in valuethe purchaser is not obliged to
.accept it.   There was ho offer on the part of the





Company to restore the premises to their original
condition, nor even to reimburse him for the loss
occasioned by the fire. On these grounds and
because the premises were now unfit for occu¬
pancy and cannot be let in their present condi¬
tion, the purdiaser was relieved from his bid. In
coimection with the subject of relieving pur¬
chasers at judicial sales from their bids, other
kindred decisions have been made—the judges
holding that a purchaser will not be compelled to
complete his purchase where he buys the property
under a mistake as to its condition; nor where he
will not obtain such an interest in the premises,
and in the buildings thereon, as he had a right to
suppose he was purchasing from the terms of the
sale, nor where by the fault of the parties the
completion of the sale has been delayed so long
that he cannot have the benefit of his purchase,
substantially, as if the sale had been completed
at the time contemplated by the terms of the sale;
nor where the pm-chaser has given an unreasona¬
ble price for the property. Resales will also be
ordered by the Com-t \yhen it is established be¬
yond a reasonable doubt that any undue advantage
nas been taken to make the property seU for less
than its value; or any trick or fraud practiced by
which the property has been sacrificed or made
to bruig less than it otherwise would have
brought.

In a very recent case. Judge Davis ordered a
resale where the property was sold for much less
than its real value to the testamentary guardian
of infant children who were the owners of the
equity of redemption. The guardian pm-chased
the property in his own right, and claimed to
hold the premises for his own benefit. Soon after
the sale the guardian borrowed a much larger
sum than ,the former mortgage, and various cir¬
cumstances appeared tending to show that the
sale was a scheme of the guardian to get the
property in his own right, and cut off the inter¬
ests of the infants, at a price below its real value.

ASSESSMENTS.

In the matter of the petition of Henry A. Cram
to vacate an assessment for regulating, curbing
and guttering Fifth avenue, from One Hundred
and Thirtieth street to One Hundred and Thirty-
eight street. Judge Davis has made an order
directing the assessors to assess the property for
an amount not exceeding one-half its value.
Some few months ago the Court of Appeals
vacated the assessment, on the gi-ound that sub¬
stantial error and fraud had been committed, and
that the assessment exceeded the limitation of
one-half the value of the property assessed. The
Judge holds that the assessment is only void for
the excess, and the assessment is good for the
residue. It cannot be held that the property can¬
not be assessed at aU; on the contrary, it can be
lawfully assessed to the extent of one-half its
value, and an order to that effect was directed to
be entered.

MECHANIC'S LIEN IN KINGS AND QUEENS COUNTY.

Judge McCue of the City Court of Brooklyn
has recently decided that under the Kings and
Queens County Mechanic's Lien laws a lien may
be filed after the decease of the owner, who is
also the one emplo3iTng the .contractor, and who
dies after the commencement but before the com¬
pletion of the work. The Judge says that the
death of the owner does not release the lienor
from his obligations which he assumed when he
entered into the contract, and he is bound to go
on and perform the contract, notwithstanding the
death of one of the parties. And it follows, that
if he fulffis the contract on his part, he is entitled
to aU the pi-ivileges and securities which attached
to the contract at the time he entered into it. It
has also been decided by the same Court that if
the owner pays to the contractor the. whole con¬
tract price of his work, in advance of the com¬
pletion of the work by a sub-contractor, by collu¬
sion, for the purpose of avoiding the provisions
of the Mechanic's Lien law, such payment shall be
ineffectual against apy lien filed by such sub¬
contractor.