Firsty v. Swan , 204 N.Y.S.2d 609 ( 1960 )

In an action for a judgment declaring the boundary lines between the land of the plaintiffs and the land of the defendant, for an injunction and for damages, plaintiffs and the defendant cross-appeal from different portions of a judgment of the Supreme Court, Westchester County, entered July 14, 1959, after trial. Plaintiffs appeal from so much of the judgment as: (a) denies them an injunction to compel defendant to remove a certain wire fence and part of a certain masonry wall; (b) denies them an injunction to restrain defendant from diverting the waters of Plum Brook and to compel defendant to restore the banks of the brook to their previous natural channels without flowing through the land of the defendant; and (e) denies them money damages. Defendant appeals from so much of the judgment as: (a) determines the boundary lines in favor of the plaintiffs in accordance with their claim; (b) enjoins defendant from maintaining the encroachment of said fence and wall; and (e) awards costs in favor of the plaintiffs against the defendant. Judgment, insofar as appealed from by plaintiffs and the defendant, modified on the law by striking out the award of costs and disbursements against defendant in favor of plaintiffs. As so modified, the judgment is affirmed, without costs. The findings of fact are affirmed. Since the Special Term in its decision did not award costs to plaintiffs, the judgment should not have contained a provision allowing costs and disbursements against the defendant in favor of the plaintiffs. Defendant also appeals from so much of an order of said court, dated August 6, 1959, as denies his motion to add his wife 'as an indispensable party. Order, insofar as appealed from, affirmed, without costs. No opinion. Plaintiffs also appeal from the portions of the decision on which the said judgment was entered. Such appeal is dismissed, without costs. No appeal lies from a decision. Beldoek, Acting P. J., Ughetta, Christ, Pette and Brennan, JJ., concur. [17 Misc 2d 57.]