(dissenting). I dissent.
There is no dispute as to the fact that plaintiff, John Alieva, in his individual capacity, erected a two-family house upon the inside lot, known as lot 20, and constructed a driveway which covered three and one-half feet of the corner lot, known as lot 21. He asserted that he erected a garage in the rear of the two-family house in 1924. An examination of his testimony indicates quite clearly, in that respect, at least, that he did not tell the truth.
Alieva, in 1927, conveyed both lots to Rosalia Tornatore and, as part of the purchase price, took back a purchase-money mortgage in the sum of $10,450 upon lot 20. No reference was made in the purchase-money mortgage or the deed to a right of way over lot 21. Surely, as Alieva claimed that lot 21 was burdened with an easement, appropriate words, which would give that effect, should have been written into the instrument.
Rosalia Tornatore, the owner of the two lots, in 1929, erected a portable garage on lot 20 in the rear of the house. Subsequently on May 3, 1932, she conveyed lot 21 to the defendants without reserving any right of way over the demised property. The driveway, according to the testimony of Arthur Tornatore, was used to gain access to the garage between 1929 and 1932. In the early part of the latter year the garage was moved over from the mother’s lot to that of her sons. He testified that between 1932 and 1937 the driveway was not used for its original purpose. Incidentally, it might be remarked that there is no claim of fraud in either the removal of the garage or in the conveyance by Rosalia Tornatore to her sons.
In the year 1933 Rosalia Tornatore was apparently unable to pay the carrying charges on lot 20 and as a result an action to foreclose the mortgage on the propertv was instituted on Decem*530her 5, 1933. The suit was discontinued and the matter adjusted between the plaintiff and Rosalia Tornatore by the delivery oí her deed to the premises on December 18, 1933.
It is asserted by the plaintiff that the provision in that deed which reads: “ Together with all the right, title and interest of the party of the first part [grantor] in and to the streets, roads or lanes in front of or adjoining the said premises ” indicates that Rosalia Tornatore had an easement over her sons’ lot at the time the conveyance was made. It is quite apparent that this claim is unfounded, since that provision can be found in almost any deed in that particular section due to the fact that prior to annexation it was a common practice among conveyancers to use those terms for descriptive purposes.
Judgment should have been rendered in favor of the defendants.
Judgment and orders affirmed, with costs.