¶1(concurring.) I have entertained doubts as to whether the action can be maintained on the conditional threat of defendant to remove plaintiff’s building after he had collected the penalty of $25. But I conclude that the very existence of the order, declaring plaintiff’s house an encroachment on the highway, constituted a threat justifying the action. If the house was an encroachment, the duty devolved on defendant to remove it, and he could at any time, without a moment’s warning, proceed to do so. Without considering the question as to whether the order constitutes a cloud on the title, I think there should be an affirmance of the judgment.
24 N.Y.S. 460
Flood v. Van Wormer
Decided July 8, 1893
New York Supreme Court · decided 1893-07-08
Action by John Flood against Henry Van Wormer, as . commissioner of highways of the town of Rotterdam, to restrain the removal of plaintiff’s house as an encroachment on the highway. Judgment for plaintiff. Defendant appeals.
Affirmed · Decided 1893-07-08