Melnyk v. Tutko , 260 A.D. 985 ( 1940 )

Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: We believe that the finding of title by adverse possession as to the land used as a sidewalk along the easterly side of defendants’ house and as to an easement to the land occupied for gas, water and sewer pipe is against the weight of evidence. The record does not disclose clearly the length of time, and the circumstances of the claimed adverse use. On a new trial all issues as to the entire 8.4 feet of land claimed by defendants will be open for examination. All concur. (The judgment is for defendants in an action in ejectment, and vacates a previous judgment in favor of plaintiff. The order grants defendants’ motion to reopen the previous judgment in favor of plaintiff.) Present — Crosby, P. J., Cunningham, Taylor, Harris and McCurn, JJ.