On February 1, 1923, the plaintiff, individually, ■purchased lots 20 and 21, as described on a map entitled “ Map of Property of Whitehall Realty Company, White Plains Avenue, between E. 234th Street and Nereid Avenue, Borough of Bronx, New York City.” These lots are situated on the northwest corner of Two Hundred and Thirty-fifth street and Barnes avenue in the borough of Bronx.
On lot 20, which is the more northerly lot, the plaintiff, in 1923, constructed a two-family brick house. Soon thereafter he also constructed a garage at the rear of lot 20, together with a concrete driveway leading from the garage to the street. This driveway, the subject of the present litigation, is seven feet in width and is built across the southerly three and one-half feet of lot 20 and the northerly three and one-half feet of lot 21.
On November 30, 1927, the plaintiff sold and conveyed both lots to Rosalia Tornatore. In part payment of the purchase price he received a second mortgage for $10,450 on lot 20. That mortgage contains no reference to any easement over the concrete driveway, half of which was constructed upon lot 21. The Special Term, however, upon sufficient evidence, found that from the time of construction until the commencement of the action the driveway had been in continuous use as such and that it was essential to the reasonable use and enjoyment of the premises. It held, accordingly, that under the rule expressed in Spencer v. Kilmer (151 N. Y. 390), an easement over the driveway would have existed in favor of a grantee of lot 20 and that the same principle operated in favor of a mortgagee. In reaching this conclusion, upon which it is unnecessary to express any opinion, the Special Term, we think, overlooked the circumstance that the plaintiff’s mortgage has never been foreclosed.
On May 3, 1932, Rosalia Tornatore conveyed lot 21 to her sons, the defendants herein, by a deed which contained no reservation of any easement with relation to the property conveyed. Thereafter she defaulted on the plaintiff’s mortgage. The plaintiff instituted foreclosure proceedings, during the pendency of which Rosalia Tornatore executed and delivered to the plaintiff, in his capacity as trustee, a deed to the mortgaged premises, dated December 18, 1933. This deed, in addition to conveying the premises together with the “ appurtenances and all the estate and rights ” of Rosalia Tornatore therein, also included “ All the right, title and interest of the party of the first part [Rosalia Tornatore] in and to the streets, roads or lanes in front of or adjoining the said premises.” Subsequently the defendants, by the erection of a fence through the center of the concrete driveway, sought to exclude the plaintiff from the use of so much of the driveway as was constructed on lot 21.
*527Assuming, without deciding, that the plaintiff’s mortgage on lot 20 included also those apparent and visible easements which at that time were used by the owner for the benefit of the incumbered premises, it would still be necessary for the mortgagee to foreclose the mortgage as against any intervening subordinate interest before he would become entitled to the enjoyment of the easement, In the present case the defendants acquired the ownership of lot 21 after the creation of the plaintiff’s mortgage. If we assume that their interest in lot 21 is subordinate to an easement created in favor of the plaintiff, as the Special Term decided, it would still require foreclosure proceedings to reduce those rights to possession. Without foreclosure, the plaintiff is not entitled to enforce the easement against the defendants, notwithstanding that his mortgage is in default. (Sullivan v. Rosson, 223 N. Y. 217.)
We think, however, that the plaintiff is in a position to enforce the easement under the deed of December 18, 1933, from Rosalia Tornatore. It is true that he thereby acquired only such rights as his grantor could convey and that these were limited by the interest which the defendants had previously acquired by the deed of May 3,1932, conveying to them the ownership of lot 21. (Green v. Collins, 86 N. Y. 246.) That interest, however, was subject to an easement by implication in the driveway in favor of their grantor, Rosalia Tornatore. At the time of the conveyance of May 3, 1932, the concrete driveway was in the same condition as when first constructed and, although the garage at the rear had been demolished, was in continuous use by motor cars, as the court has found upon the testimony of the plaintiff and his wife. Apparently, after demolition of the garage on lot 20, the vacant space at the rear was continued to be used for the parking of cars by means of the driveway which formerly led to the garage. Under such circumstances the conveyance to the defendants by Rosalia Tornatore of lot 21 was subject to the servitude created for the benefit of lot 20, the existence of which was “ open and visible.” (Lampman v. Milks, 21 N. Y. 505; Heartt v. Kruger, 121 id. 386; Fritz v. Tompkins, 168 id. 524; Winne v. Winne, 95 App. Div. 48; Wheeldon v. Burrows, L. R. 12 Ch. Div. 31; Walsh on the Law of Property [2d ed], § 291.) That implied easement was acquired by the plaintiff by the conveyance to him of lot 20 on December 18, 1933.
By their notice of appeal the defendants also bring up for review an order which.granted a temporary injunction herein and a further order which denied the defendants’ motion to dismiss the amended complaint. In view of our conclusion, as previously stated, these orders should also be affirmed.
The judgment and orders should be affirmed, with costs.
*528O’Malley and Dore, JJ., concur; Martin, P. J., and Glennon, J., dissent, with opinions.