Opinion
December 21, 1970
In an action for a declaratory judgment establishing an easement over defendants' land and for related relief, plaintiff appeals from (1) an order of the Supreme Court, Kings County, dated July 14, 1969, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment and (2) a judgment of said court dated July 18, 1969 and entered upon said order. Order modified by striking therefrom all the decretal provisions except the second, which denied plaintiff's cross motion, and by adding thereto a provision that defendants' motion is denied. As so modified, order affirmed. Judgment reversed. Appellant is awarded a single bill of $10 costs and disbursements to cover both appeals. In our opinion, there are issues of fact with respect to necessity and prescription. Christ, P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.