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O'Shea v. Freiberg

Appellate Division of the Supreme Court of New York, Second Department
Dec 17, 1951
279 App. Div. 760 (N.Y. App. Div. 1951)

Opinion

December 17, 1951.


In an action to restrain interference with an automobile driveway and to declare the existence of a prescriptive right to use adjoining land, judgment, entered in favor of respondents on the decision of an Official Referee, made after trial, affirmed, with costs. 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 into 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.]


Summaries of

O'Shea v. Freiberg

Appellate Division of the Supreme Court of New York, Second Department
Dec 17, 1951
279 App. Div. 760 (N.Y. App. Div. 1951)
Case details for

O'Shea v. Freiberg

Case Details

Full title:LILLIAN O'SHEA, Appellant, v. ERNEST FREIBERG et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 17, 1951

Citations

279 App. Div. 760 (N.Y. App. Div. 1951)

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