O'Shea v. Freiberg

Appellate Division of the Supreme Court of New York

O'Shea v. Freiberg

279 A.D. 760, 108 N.Y.S.2d 759, 1951 N.Y. App. Div. LEXIS 3689

Appellate Division of the Supreme Court of the State of New York·Decided December 17, 1951·Published·Cited by 1 cases

Opinion

The circumstances disclose that the user in its inception (or many years later) was not hostile, to the understanding of either or both parties, or made known to be hostile and therefore it was presumptively permissive through acquiescence of respondents and their predecessors. It was only recently asserted to be hostile and then for a period insufficient to ripen [761]*761into an easement by prescription. (Moore v. Day, 199 App. Div. 76, 86, affd. 235 N. Y. 554.) Nolan, P. J., Carswell and Adel, JJ., concur; Sneed and Wenzel, JJ., concur in result, on the ground that the record does not establish the easement alleged in the complaint. [See post, p. 800.]

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The circumstances disclose that the user in its inception (or many years later) was not hostile, to the understanding of either or both parties, or made known to be hostile and therefore it was presumptively permissive through acquiescence of respondents and their predecessors. It was only recently asserted to be hostile and then for a period insufficient to ripen [761]*761into an easement by prescription. (Moore v. Day, 199 App. Div. 76, 86, affd. 235 N. Y. 554.) Nolan, P. J., Carswell and Adel, JJ., concur; Sneed and Wenzel, JJ., concur in result, on the ground that the record does not establish the easement alleged in the complaint. [See post, p. 800.]

O'Shea v. Freiberg, 279 A.D. 760, 108 N.Y.S.2d 759, 1951 N.Y. App. Div. LEXIS 3689 (N.Y. Ct. App. 1951).

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Opinion

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