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Supreme Court, February, 1918.

court may fix the fee damages. The plaintiff and defendant made such agreement.

The conveyance to plaintiff secured to him easements of light, air and access in and over George street. Though not a public street, the plaintiff acquired the right to have George street at all times kept open and unobstructed for the benefit of his property. Haight v. Littlefield, 147 N. Y. 338; Welsh v. Taylor, 134 Fed. Repr. 450.

The defendant is chargeable with notice of the provisions in the Lee deed and of Lee's easements in George street. Whistler v. Cole, 81 Misc. Rep. 519; affd., 162 App. Div. 920.

But plaintiff, by his agreement of October 13, 1917, lost the right to an injunction and to fee or permanent damages. Easements of light, air and access appurtenant to real property abutting upon a street or an open space are inseparable from the dominant estate; and, upon a conveyance of that estate, such easements pass to the grantee, notwithstanding the grantor attempted a reservation of the same, or of any rights of action for a trespass. McKenna V. Brooklyn Union E. R. R. Co., 184 N. Y. 391. Those assessments are incapable of a distinct and separate ownership, and can be possessed and enforced by the owner of the property only. Pappenheim v. Metropolitan E. R. Co., 128 N. Y. 436; Pegram v. New York E. R. R. Co., 147 id. 146. Before the trespasser is required to pay damages, it is entitled to a release from the grantee, the owner, who alone can give such release; in this case a release from itself. McKenna Case, 184 N. Y. 396. Its easements are merged in its higher right, its fee. The easements are extinguished. 14 Cyc. 1188. The right of action to restrain trespass thereon and for damages is extinguished with them. The fact that a contract to convey was executed rather

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[Vol. 102.

than a deed does not affect the rights of the parties. In a contract to convey real estate the vendee becomes the equitable owner of the property, the vendor continuing to hold the legal title merely as security for the payment of the purchase money. Matter of Edgewater Road, 138 App. Div. 203.

The right to recover for past or temporary damages is not lost by the sale of the property with the aforesaid reservation (Pappenheim Case, supra), but no evidence was offered on which the court can fix such damages. The court, in view of the facts in this case, will not retain an action in equity merely to fix nominal damages. The intervenor is the real defendant, and this because of her warranty. A stipulation between plaintiff and defendant cannot control her. After the agreement of October thirteenth the defendant company was entirely released by this plaintiff from any liability, the only condition attached to this release being that, in case judgment is recovered against it in this action, it will begin an action against Mrs. Bonticou, but without any cost or liability resting upon it. It has no real interest in this action. As soon as the intervenor was permitted to file her supplemental answer, she asked for a jury trial, claiming this was purely a law action. At that time the agreement of October 13, 1917, was not in evidence, and the request was denied. But, it now appearing that no relief in equity can be had in the action, and that the said agreement was in fact made before the action was begun, the plaintiff should be left to his remedy at law, where he has an adequate remedy in an action for damages, if any can be established. Penrhyn Slate Co. v. Granville E. L. & P. Co., 181 N. Y. 80; Jackson v. Strong, 222 id. 149, 153, 154. The complaint should be dismissed.

Ordered accordingly.

Misc.]

Supreme Court, February, 1918.

MARIONTONIO MIGLIER, Plaintiff, v. THE PHOENIX InsurANCE COMPANY OF HARTFORD, CONN., Defendant.

(Supreme Court, Steuben Special Term, February, 1918.)

Insurance (fire) - action to recover on policy of evidence - proofs of loss-trial - pleading.

In an action begun in November, 1917, to recover on a fire insurance policy, a complaint alleging that in July, 1917, after the occurrence of a fire in January, 1917, which totally destroyed the insured property, the plaintiff "fully complied with the terms and provisions of the said policy, and did furnish to the defendant satisfactory proofs of the said loss, and the defendant accepted of the said proofs, and retained the same without objection as and for a full and complete compliance with the terms and provisions of the said policy, and that more than sixty days have elapsed since plaintiff furnished the said proofs of loss, etc.," is a sufficient statement of facts to enable plaintiff to offer proof at the trial as to whether defendant by retaining, without objection, the proofs of loss furnished waived the terms of the policy on the question of the sufficiency of the proofs of loss and the time of service thereof.

Whether there was such a waiver is a question for the jury and should not be disposed of on the hearing of a demurrer to the complaint.

Judgment in favor of plaintiff, overruling the demurrer, with leave to answer within twenty days on payment of costs.

DEMURRER to plaintiff's complaint.

J. B. Hargrave (James O. Sebring, of counsel), for plaintiff.

Shire & Jellinck (Harry Ginsburg, of counsel), for defendant..

CLARK, J. This is an action to recover on a fire insurance policy. Defendant demurs to the complaint on the ground that it does not state facts sufficient to

Supreme Court, February, 1918.

[Vol. 102. constitute a cause of action in that it does not state that immediate notice of the fire was given to the defendant; that the complaint does not allege that the action was commenced within twelve months after the fire, and that it does not allege facts constituting a waiver of timely service of proofs of loss.

The fire occurred January 27, 1917, and proofs of loss were furnished defendant about July 13, 1917, and were retained by defendant without objection and without requiring further proofs. The action was begun in November, 1917, the complaint being verified November twenty-fourth of that year.

The complaint, after alleging the incorporation of the defendant and the issuing of the policy of insurance sued upon, states: "That on or about the twentyseventh day of January, 1917, the said dwelling, insured as aforesaid, was totally destroyed by fire, and that thereafter on or about July 13, 1917, the plaintiff fully complied with the terms and provisions of the said policy, and did furnish to the defendant satisfactory proofs of the said loss, and the defendant accepted of the said proofs and retained the same without objection, as and for a full and complete compliance with the said terms and provisions of the said policy."

The complaint further contains this provision:

"Sixth. That more than sixty (60) days have elapsed since plaintiff furnished the said proofs of loss, as aforesaid, and that the said defendant has wholly failed, refused and neglected to comply with the terms and provisions of the said policy by paying to the plaintiff the amount of the said insurance upon the said dwelling, and there is now justly due and owing to the plaintiff from the defendant the sum of one thousand ($1,000.00) dollars, with interest thereon from the 27th day of January, 1917."

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Supreme Court, February, 1918.

These allegations would seem to be sufficient, and I do not think it was necessary to allege that the action was commenced within twelve months after the fire. The entire complaint shows that fact clearly enough without its being specifically alleged. Corico v. Smith, 178 App. Div. 33; Sharrow v. Inland Lines, Ltd., 214 N. Y. 101.

The complaint states that the plaintiff furnished to the defendant satisfactory proofs of the loss and that the defendant accepted of said proofs and retained the same without objection as and for a full and complete compliance with the terms and provisions of the policy, and that more than sixty days have elapsed since the proofs were furnished. That is sufficient without an allegation that immediate notice of the fire was given. Clemens v. American Fire Ins. Co., 70 App. Div. 435.

The case of Williams v. Fire Association of Philadelphia, 119 App. Div. 573, relied upon by defendant, is not deemed a controlling authority here. In that case neither the pleadings nor the proofs showed that the action was commenced within twelve months after the fire, the fire occurring in October, 1900, and the action not being commenced until January, 1905.

Here the fire occurred in January, 1917, and the proofs of loss were furnished in July, and the action. begun in November of that year.

Defendant complains that the complaint does not allege facts showing a waiver of the time of the presentation of proofs of loss. I think the complaint is sufficient to enable plaintiff to claim a waiver if he can prove it.

It would not be proper to construe the terms of fire insurance policies strictly and arbitrarily against the insured, but they should be liberally construed in favor of the insured.