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GEORGE E. MILLER v. NATALE TALLARINO ET AL. (10/24/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


October 24, 1968

GEORGE E. MILLER, RESPONDENT
v.
NATALE TALLARINO ET AL., APPELLANTS

Appeal from judgment of Oneida Trial Term in action to determine title to real property.

Bastow, P. J., Williams, Goldman, Del Vecchio and Henry, JJ.

Memorandum: In this action to determine title under article 15 of the Real Property Actions and Proceedings Law, the judgment correctly decrees that plaintiff's title extends to the center of the streets on which his lots abut. It erroneously decrees, however, that plaintiff also owns portions of the streets which are not adjacent to his lots, but adjoin lands of other lot owners who are not parties to the action. While appellant, Adeline Tallarino, whose lots abut a city street, acquired no easement to use the undeveloped streets of the subdivision (Matter of City of New York [ E. 117th St.] 239 N. Y. 119, 130, 131; Hecht v. Launer, 30 Misc. 2d 47, 53, 54, affd. on opinion below 14 A.D.2d 964) she does own that part of Ardmore Street which lies between her lots number 49 and 50 subject to such rights of easement as other lots owners may possess.

Disposition

Judgment unanimously modified on the law and facts, without costs by adding to the last sentence of the first decretal paragraph thereof the words "upon which plaintiff's premises abut to the center line thereof", by deleting from the fourth decretal paragraph thereof the words, "by adverse possession" and by adding to the next to last decretal paragraph thereof the words "except that Adeline Tallarino is declared to be the owner in fee of that portion of Ardmore Street which adjoins her lots 49 and 50, subject to such rights of easement as other lot owners may have." Certain findings of fact disapproved and reversed and new findings made.

19681024

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