[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 253 Prior to 1932, plaintiff's predecessor, Michael Burke, owned a right of way eight feet in width across the western end of defendants' property, which lay between his lot and a street to the north. In that year Burke conveyed to defendants a narrow strip of land along the northern boundary of his lot and running the full length of both lots, and reserved therefrom only "a right of way over a strip of land four feet in width across the lands hereby conveyed". Burke then told defendants that he had retained four feet so that "they can get in and out to get the garbage" from his building. Upon the finding of the Appellate Division, which has substantial support in the record, that Burke thereby retained a right of way only four feet wide across a portion of defendants' land, he must be held to have indicated unequivocally his intent to forego future use of the prior easement save as a footpath. Burke thus abandoned his right of way insofar as it exceeded four feet in width. (See Porter v.International Bridge Co., 200 N.Y. 234, 248-249.)
Plaintiff, who purchased his property from Burke's estate in 1937, could have acquired no more than an easement four feet wide across defendants' land. Since defendants' building does not encroach upon that easement, there is no occasion for equitable relief.
The judgments should be reversed, and the complaint dismissed, with costs in all courts.