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Supreme Court, December, 1921.

[Vol. 117.

The cutting of a door in the foundation wall and the enlarging of a window was done in order to dry up the cellar in the building and to prevent the flooding of the same; the brick foundation piers were rebuilt because of the unsafe condition of the same, and a window in the rear of the apartment on the first floor was cut down in order to provide safe access to the yard by means of an open porch. All this work was therefore necessary and proper in order to preserve the building and the proper and convenient use thereof. Moreover, the evidence satisfies me that such work was not substantial in character; the foundation walls of the building have not been weakened and the value of the plaintiff's security has not been impaired. The defendants claim that the plaintiff consented to the alterations, at least to those made in the cellar, and that even if he did not expressly consent to the alterations he impliedly did so, because, as they claim, the plaintiff knew that the work was going on and that he made no objection to it until he served the notice that he elected to call in the mortgage. The plaintiff, on the other hand, testified that he never consented to the making of any alterations and that he, in fact, had never been asked to consent. While I am inclined to give credence to such testimony of the plaintiff, I am satisfied that the defendants in making such alterations had no idea that they were violating the said provisions of the mortgage. The plaintiff does not claim that he has been injured by the alterations, or that his security has been impaired in the slightest degree. On the contrary it would appear from the evidence that they have enhanced the value of the property. He, nevertheless, maintains that it is not important whether the security was impaired or not; that the mortgagor agreed in the covenant in question that he would not make any alterations without the

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Supreme Court, December, 1921.

consent of the mortgagee, and that if he did, he agreed that the holder of the mortgage would have the right to demand his money and foreclose in the event that it was not paid. The plaintiff in urging such point has evidently overlooked or ignored the very important fact that the mortgage has still over five years to run and bears interest at the unusually low rate of four and one-half per centum per annum, and that if the relief sought by him is granted he will be enabled to collect the mortgage debt far in advance of the maturity thereof, and to loan out the money at a higher rate of interest. The election of the plaintiff to demand payment of the mortgage debt made under the foregoing circumstances is manifestly unconscionable. It is a familiar principle of equity-jurisprudence that a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice or oppression. Noyes v. Anderson, 124 N. Y. 175; Ver Planck v. Godfrey, 42 App. Div. 16; Gilbert v. Shaw, 63 Hun, 148, 154; Palmer & Singer Mfg. Co. v. Barney Estate Co., 149 App. Div. 136. A judgment of foreclosure and sale should therefore not be decreed. The plaintiff claims, however, that under the provisions of sections 121 and 122 of the Tenement House Law he would, even if the mortgage did not contain the covenant in suit, have a right to call in the mortgage upon the discovery by him that the mortgagor was making alterations to the premises without filing an application for a permit. I do not think the present case falls within the provisions of the statute relied upon, but if it does I think the effect of the failure to file plans and specifications before making the alterations is avoided by the subsequent approval thereof by the Tenement House Department and the Building Department, and the issuance of the appropriate permits. My conclusion is that the defendants

Supreme Court, December, 1921.

[Vol. 117. are entitled to judgment dismissing the complaint upon the merits, with costs, but with no extra allowance. The requests for findings of the respective parties have been passed upon as indicated on the margins thereof. Submit for my signature, on notice, a decision embodying, without change of language, all findings made by me. All papers received by me, including briefs, requests for findings and filed papers, have been returned to the clerk, to whom all further papers should be handed in, with proof of service.

Judgment for defendants.

SAMUEL STEWART et al., Plaintiffs, v. HARRY TURNEY et al., Defendants.

(Supreme Court, Cayuga County, December, 1921.)

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Injunctions leases defendants rights of riparian owners enjoined from hunting on shore of lake where hunting privileges were leased to plaintiff by owner of uplands.

While hunting upon and fishing in navigable waters are incidental to the right of passage over them, the enjoyment of these incidents to navigation does not in any event justify the continuous use of the shore.

A lease to plaintiffs from the owner in fee of certain premises, whose title did not extend to any part of the land under water, described the property as the land "which borders or has a frontage on Cayuga Lake and is known as Judsons Point." The lease further recited that it was understood that the lessees acquired no right in the land except for hunting and trapping purposes, for which the lessees agreed to pay a stated annual rental. In an action to restrain defendants from hunting upon a portion of the shore in which plaintiffs claim the exclusive privilege of hunting under their lease, the answer alleged that the title to the waters of Cayuga lake, including the bank and the shores thereof, is vested in the people of the state of New York and that at the times mentioned in the complaint defendants were hunting on state property. It was

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Supreme Court, December, 1921.

proven on the trial that on different occasions between certain dates all of the defendants hunted ducks from a hide or blind from that part of the lake shore included in plaintiffs' lease, and when requested to desist, refused to do so; it was also established that the premises were duly posted pursuant to the Conservation Law. Held, that assuming that defendants' contention as to the ownership of the soil was true, and interpreting their conduct by the most favoring rules, their position was untenable, and plaintiffs are entitled to judgment for the relief demanded in the complaint.

Certain exhibits excluded after decision reserved as to their competency, and defendants given an exception to the ruling.

ACTION to enjoin defendants from hunting upon premises fronting on Cayuga lake of which the plaintiffs are the lessees and claim to be entitled to the exclusive privilege of hunting thereon.

Harry A. Gleason (Frank S. Coburn, of counsel), for plaintiffs.

Nelson L. Drummond, for defendants Turney, Hoff and Dooley.

George B. Becker, for defendant Bausch.

STEPHENS, J. The plaintiffs seek in this action to restrain the defendants from hunting upon a portion of the shore of Cayuga lake in which plaintiffs claim the exclusive privilege of hunting by virtue of a lease from the United States Gypsum Company, the owner of the premises bordering upon the lake; the particular acts of which plaintiffs complain are that on several occasions after the execution of the lease on October 22, 1920, the defendants hunted ducks from that part of the lake shore included in their lease and thus infringed upon their sole prerogative.

Supreme Court, December, 1921.

[Vol. 117. The defendants in their answer in addition to putting in issue the allegations of the complaint allege that the title to the waters of Cayuga lake, including the bank and the shores thereof, is vested in the people of the state of New York and that they were hunting on state property at the times mentioned in the complaint.

It was proven on the trial that on different occasions after October 1, and before December 10, 1920, one or more of the defendants, the different occasions, however, involving them all, hunted ducks from a hide or blind located upon that part of the lake shore included in the plaintiffs' lease, and when requested to desist, refused to do so; it was also established that the premises were duly posted pursuant to the Conservation Law.

The lease to which reference has been made and upon which the plaintiffs predicate their claim to exclude the defendants from the privilege of hunting on the shore was made by the United States Gypsum Company, who owns the fee of the upland, to the plaintiffs; it briefly describes the demised property and by way of further identifying or indicating its peculiar value refers to it as land" which borders or has a frontage on Cayuga Lake and is known as Judsons Point "the lease further recites that it is understood that the plaintiffs acquire no right in the land except for hunting and trapping purposes; for this privilege of hunting, trapping, erecting a camp, and posting the land the lessees agreed to pay the annual rental of $100.

The deed by which the gypsum company acquired title to the property in question described the westerly and lakeside border as running" along the shore of said lake;" its title, therefore, does not extend to any part of the land under water. City of Geneva v. Henson, 195 N. Y. 447.

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