All the defendants, except Abrahamson, owned lots adjacent on the west to Point Stockholm. They originally owned no lands on the Point. Stockholm tract, and consequently had no right to use the commons and jiarks of that tract. The plaintiff owned several lots and an inclosed triangular piece extending down to the lake, and which comprised a part of the tract referred to. These adjacent owners were accustomed to cross over this three-cornered piece, which evidently caused trouble. The defendant Abrahamson owned three lots on the Point Stockholm tract; one, PTo. 8, a vacant lot, fifty-two by eighty feet, and fronting on Willow avenue, an opened street. In 1902, and long after this tract had been plotted and mapped and buildings erected on it, Abrahamson conveyed this vacant lot to the other defendants as tenants in common. The purpose of this conveyance was apparently to enable these defendants, who were not owners on this tract, to reach their lots more conveniently.
This use was not reasonably appurtenant to this vacant lot or to the premises as a whole and subjected them to an additional burden without the consent of the plaintiff. I think by this purchase they did not acquire any right to pass over plaintiff’s triangular piece or the parks and commons in going to and from their adjoining premises. (McCullough v. Broad Exchange Co., 101 App. Div. 566; affd., 184 N. Y. 592; Rexford v. Marquis, 7 Lans. 249.)
In the latter case the court states the rule at page 262 as follows: “ The doctrine is well settled that the owner of a right of way across one piece of land to another cannot use it to pass into an additional piece owned by him and which lies adjacent to it. * * * Nor can the right of way be extended and enlarged *843without the assent of the parties, beyond the purpose originally intended.”
It may be that the judgment should be modified by relieving the defendants from the burden of removing the planking and piles in front of the plaintiff’s premises. However, as a majority of the court are in favor of a new tidal I dissent find vote for affirmance.
Kruse, J., concurred.
Judgment so far as appealed from reversed and a new trial ordered before another referee upon questions of law and fact, with costs to appellants to abide event.