Flores v. Franceschini , 1 A.D.2d 899 ( 1956 )

In an action by a property owner against his adjoining property owner to compel removal of so much of a wooden fence as exceeds the height of ten feet, measured vertically from the established grade at the curb, the appeal is from a judgment for respondent, after trial upon stipulated facts. Judgment reversed on the law, without costs, and complaint dismissed, without costs. The findings of fact are affirmed. The holdings in the cases of 122 East 40th St. Corp. v. Dranyam Realty Corp. (226 App. Div. 78) and Weinstein v. Weisser (240 App. Div. 724) should be limited to the facts therein. In neither of them was there an issue of curb level versus natural level of the ground. To apply rigidly the rule enunciated in those eases to the one at bar would achieve a result contrary to the intent of those cases and section 3 of the Real Property Law. In this case, where the adjoining lots are both above curb level and are at substantially the same elevation, the height of the fence should be measured from the natural level of the ground upon which it rests. So measured, it does not exceed a height of ten feet and does not violate the law. Nolan, P. J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.