Opinion
June 24, 1971
Appeal from an order of the County Court of Saratoga County, entered April 1, 1970, denying defendant's cross motion for summary judgment. Respondents seek reformation of a deed under which appellant acquired title to certain premises, as well as a determination of title by adverse possession in their favor. In 1950, one Harriet Smith agreed to sell to the appellant a parcel of land in the Town of Moreau, Saratoga County, New York. It is respondents' contention that the property to be conveyed contained 60 feet on the Saratoga State Highway with a depth of 250 feet. They assert that the draftsman of the deed made an error in the description of the property to be sold, and inadvertently described the parcel as 180 feet by 250 feet. It is further alleged that this mistake did not become apparent to Harriet Smith and was not discovered until after her death. Lastly, respondents contend that they or those in privity with them have been in uninterrupted possession of the parcel of land they claim since the conveyance to appellant, to whom no rent has been paid. Concededly, the premises in question have been assessed to respondents since the conveyance in 1950, and respondents have paid the taxes thereon. The affidavits, depositions and exhibits offered by the parties upon this motion raise factual issues with respect to both causes of action, which preclude summary judgment and must be reserved to the trier of the facts. Order affirmed, without costs. Herlihy, P.J., Aulisi, Greenblott, Cooke and Sweeney, JJ., concur.