Opinion
December 18, 1961
In an action pursuant to article 15 of the Real Property Law, to declare that a strip of land two rods wide, a part of which comprises the westerly 16 1/2 feet of plaintiff's premises, is not a public highway of the defendant town, the defendants appeal from a judgment of the Supreme Court, Suffolk County, entered March 2, 1961, upon the decision of the court after a nonjury trial, in plaintiff's favor, and dismissing defendants' counterclaims. Judgment affirmed, with costs. Defendants claimed that the subject parcel was a public highway by reason of an offer of dedication and its actual acceptance, and also by use pursuant to section 189 High. of the Highway Law. The Special Term determined that the evidence was insufficient to establish that the subject property had become a public highway by public user. We are in accord with such determination. We have also concluded that the evidence was insufficient to establish the creation of a public highway by dedication and acceptance. New findings of fact are made accordingly in support of the judgment. Nolan, P.J., Beldock, Ughetta, Christ and Pette, JJ., concur.