Orders reversed upon the law and the facts, with costs; motion of the petitioners for the condemnation of the defendant’s real property denied, with costs; motion to confirm the report of the commissioners dismissed, with costs. The issue of necessity was presented by the pleadings and was properly tried by the learned Special Term (Condemnation Law, § 4*.). The proof, however, is that Kensington road, in the village of Tuckahoe and the village of Bronxville is not a public street. It, therefore, follows that the taking of defendant’s property, which if taken would constitute the link between Kensington road and Oak avenue, did not provide a through public highway between the village of Tuckahoe and the village of Bronxville. It was stipulated in the agreed statement of facts that the sole reason for the necessity for acquiring defendant’s property and extending Oak avenue was for the purpose of providing a through public highway between the village of Tuckahoe and the village of Bronxville. We are of opinion that the petitioners not only failed to prove necessity under the theory upon which the case was tried, but that the proof to the contrary is conclusive. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Lazansky, P. J., Young, Kapper, Hagarty and Tompkins, JJ., concur. Settle order on notice.
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