(dissenting). The facts are satisfactorily set forth in the opinion of Mr. Justice Untermyer.
Prom 1923 to 1927, while the plaintiff individually was the owner of the two lots in question, no easement existed. The rule is that where there is unity of ownership no easement exists, as the owner may at any time rearrange the several parts. This rule is applicable also while title to the two lots was in the name of Rosalia Tornatore, from 1927 to 1932.
It is true that the purchase-money mortgage given to plaintiff in 1927 covered only lot 20, upon which a house had been erected, but it is unnecessary to consider the effect of the giving of this mortgage or what rights might have been acquired by the purchaser on the foreclosure had the mortgage been foreclosed. Therefore, until Rosalia Tornatore conveyed lot 21 to her sons on May 3, 1932, no question of an easement entered into the situation.
The deed from Rosalia Tornatore to her sons contained no reservation of any right over lot 21, nor were the grantees given any rights over lot 20. It is claimed that upon a severance of two tenements, easements or servitudes were created depending upon the benefits and burdens mutually existing at the time. What was the situation? A two-family house had been erected on lot 20. Lot 21 was unimproved. The driveway had been constructed in part on lot 20 and in part on lot 21. It may not be said that the driveway was essential to a reasonable use and enjoyment of lot 21 in its unimproved state. There had been a portable garage on lot 20. Whether it was there at the time of the conveyance to the sons it is impossible to determine from the record. The presence of this portable garage, however, is indicative of a temporary arrangement.
The record shows that the driveway was used for the parking of automobiles. While this may have been convenient, there was present no element of necessity. The grantor and the grantees were mother and sons. They could make any family arrangement for mutual convenience without creating easement rights. In the absence of an express reservation the circumstances here do not warrant the conclusion that there was a reservation by implication. Neither the mother nor her sons raised any question of easement rights.
There is no doubt that the temporary garage was not on lot 20 when, on December 18, 1933, a deed to lot 20 was given to plaintiff in lieu of prosecuting to judgment a foreclosure action which had been instituted in connection with the purchase-money mortgage *529given in 1927. This deed conveyed to the plaintiff such rights as the grantor had, which rights were limited by the interest which the defendants had previously acquired by the deed of May 3, 1932, conveying to them, without reservation, the full ownership of lot 21.
The plaintiff has failed to establish a cause of action, and the complaint should be dismissed. In view of this conclusion, the appeal, in so far as it involves orders granting a temporary injunction and denying defendants’ motion to dismiss the amended complaint, should be dismissed.
The judgment should be reversed, with costs, and judgment directed in favor of the defendants dismissing the complaint, with costs.