Newcomb v. Hull

— Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following memorandum: The trial court’s determination declaring that plaintiffs have a valid easement by express grant over defendants’ property and permanently enjoining defendants from obstructing the right-of-way is supported by the record and is affirmed. The court erred, however, by awarding counsel fees to plaintiffs in the absence of an agreement between the parties, or an authorization by statute or court rule (see, Matter of A. G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, 5; Tucker v Toia, 64 AD2d 826, appeal dismissed 48 NY2d 755). Therefore, the award of counsel fees is stricken from the judgments. (Appeal from judgment of Supreme Court, Yates County, Reed, J.— permanent injunction.) Present — Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.