(dissenting):
The complaint alleges that in the year 1858 one Harry Day was the owner of a certain.parcel of land, situate on the southerly side of Forty-seventh street, distant 100 feet westerly of Sixth avenue, being 75 feet in width upon' the street and 132 feet, more or less, in depth.
The owner seems to have divided this property into three lots of 22 feet each, beginning at the point nearest Sixth avenue. Upon the rear of these lots was constructed a stable for each lot, and there was a carriageway Connecting the street with these stables which commenced 166'feet west of Sixth avenue.' The plaintiffs are the owners of the westerly side of said lots, which included the fee of the carriageway. Day conveyed the westerly lot, including the carriageway,'with the following reservations: “ Subject to a right of way hereby reserved from 47th street to the stables in the rear of the two houses on lots next east of the above-described premises, as the same is shown on the annexed diagram marked ‘ Carriageway ’ and colored yellow, which carriageway is to be used in common by the owners of said three lots shown on said diagram as a passage to their respective stables.” The diagram annexed to this deed is made a part of .this complaint. - The westerly of these lots, with the carriageway, has been acquired by the plaintiffs, the conveyance of which was subject to the easement or right of way reserved in the original deed of Day conveying the westerly lot. The two easterly lots were conveyed by Day, the conveyances, after describing the particular property conveyed, granted “ a right of way from Forty-seventh street to the stables in the rear of - the premises above described, and also subject to a right of way, which said right of way *602above granted and reserved is shown on the diagram annexed to a certain deed whereby the westerly portion of the said premises were conveyed * * * and which [carriageway] is to be used in common by the owners of the three lots shown on said diagram as a passage to their respective stables.” The complaint alleges that the two easterly lots have been conveyed to the defendants; that at the time . of the original conveyance of the said lots, these three lots were intended to be occupied, each of them separately, by different persons as respective owners thereof, and they were so occupied from the year 1859 until about the year 1900, and the right of way created as aforesaid was used- by the said owners for the purposes of a carriageway from the street to their respective private stables and for no other purposes ; and that when the defendants acquired title to the two easterly lots the private houses on the said lots were torn down and a large apartment house of seven stories, consisting of several apartments, was erected on the said two lots, having a frontage of forty-four feet on Forty-seventh street -; that at the present time there is no stable in the rear of lot Ho. 106 West Forty-seventh street, the easterly lot of the plot in question; that the ground on which the stable stood was conveyed to1 the owner of the property fronting on- Forty-sixth street; that the building in the rear of premises Ho.'108 West Forty-seventh street, the center lot of the plot; is not used and cannot be used as a stable and has not been used as a stable since the defendants acquired title' to the property and erected the apartment hotel as above stated; that the defendants themselves do not reside in the said apartment house and have no intention of doing so, as the plaintiffs are informed and verily believe; and that by the erection of the said apartment hotel, as above stated, and the failure to use the said right of way as a carriageway to private stables in the rear of said premises by the owners thereof, the defendants abandoned and surrendered the right of way through and from the plaintiffs’ premises and that the use of the said carriageway is no longer necessary and that the purposes for which said carriageway was created have ceased to exist and the maintenance thereof is not beneficial to the defendants and injurious to the plaintiffs; and the plaintiffs, therefore, demand judgment that the defendants and all claiming.under them be barred from all- claim to an estate or interest or easement in the *603carriageway described in the complaint. A'demurrer was interposed, which was overruled.
I think it clear that there is no allegation which justifies the court in determining that the defendants have abandoned their easement or that the plaintiffs are entitled to have a judgment barring the defendants from all claim to an estate, interest or easement in the carriageway. The owner of the entire piece of property conveyed to the defendants’ grantors two lots on the street, upon which there were stables erected in the rear, and as an appurtenant to the property conveyed granted a right of way from Forty-seventh street to the stables in the rear of the premises conveyed. This easement became property appurtenant' to the defendants’ property and to which the plaintiffs’ property was subject. It was not restricted to a stable to be used by the occupant of either of the lots of which the right of way was an appurtenant, but the owners of the lots were entitled to maintain stables and the right of way appurtenant to them, although neither of them lived in the house upon the property to which the right of way was an appurtenant. This right of way or easement thus became the property which vested in the defendants’ grantors and wliich: passed by conveyance to the defendants. The plaintiffs’ property was conveyed subject to this easement or right of way. The grant did not in any manner depend upon the use to which the property abutting on the street should be put, or limit the right of the owners of the property to maintain a stable upon the rear and have access to the street from such stable. To justify a destruction of this easement they ,innst allege and prove either adverse possession for twenty years, or such facts as would justify a finding of abandonment. There are no facts alleged that would justify the court in finding an abandonment. The complaint further alleges that in an action brought to restrain the defendants from using one of these stables as a carpenter shop, a judgment was entered enjoining the defendants from using said carriageway for any other purpose than as a passage to and from private stables for the use of the owners of Hos. 106 and 108 West Forty-seventh street. Assuming that the adjudication bound the defendants as to their right to use these stables for any other purpose than that of a private stable, or any right of way,' except as a right Of way to a private stable, there was no adjudication which would be binding *604upon any one that the defendants had abandoned the right of way, but, if anything, an adjudication that defendants had a right of way to a private stable.
The rule is well settled that mere non-use is of no importance ks evidence of. abandonment. In Roby v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 176) it was said: “ The mere use of the easement for a purpose not authorized, the excessive use or misuse, ór the temporary abandonment thereof, are not of .themselves sufficient to constitute an abandonment. * * * Under these authorities the acts claimed to constitute the abandonment of an. easement must show the destruction thereof, or that its legitimate use has been rendered impossible by some act of the owner thereof, , or some other unequivocal act showing an intention to. permanently abandon and. give up the easement.”" (See, also, Welsh v. Taylor, 134 N. Y. 450.) The plaintiffs, in accepting a conveyance expressly subject to the easement, recognized the existence óf. the easement, and in the absence of the allegation of any act to justify a finding that the easement liad been abandoned, there is n° cause of action to have it declared that the easement no longer affects the property, and for that reason the demurrer should have been sustained.
Laughlin, J., concurred.
Judgment affirmed,, with costs, with leave to defendants to withdraw demurrer and answer on payment of costs.