269 A.D. 786 | N.Y. App. Div. | 1945
Upon appeal by plaintiffs, the judgment insofar as appealed from is unanimously affirmed, without costs. On appeal by defendants other than the City of New York, the judgment insofar as appealed from is reversed on the law and the facts, with costs against plaintiffs, and the complaint is dismissed on the law, with costs against plaintiffs. The findings of fact and the conclusion of law implicit in the short form decision of the Special Term as contained in the last paragraph thereof are disapproved and, in lieu thereof, this court will make new findings of fact and conclusions of law. The conversation with William J. Ward, Sr., as testified to by the witness Charles A. Feltman, does not establish an agreement for a permanent easement of access and egress and, in any event, the expense by plaintiffs in making the alterations attributable to the alleged agreement, does not prevent the invocation of the Statute of Frauds. Settle order on notice. Close, P. J., Hagarty, Adel and Aldrich, JJ., concur; Carswell, J., not voting. [See post, pp. 843, 865.]