O'Shea v. Freiberg (279 A.D. 760, 1951)

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.]