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Real estate record and builders' guide: v. 20, no. 487: July 14, 1877

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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.