Opinion
Argued January 6, 1960
Decided January 21, 1960
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, MATTHEW J. JASEN, J.
Ira M.J. Hovey and Abraham R. Kushner for appellants.
Sigismund M. Lopacki for respondent.
Judgment reversed and new trial granted, with costs to abide the event. The court erred in dismissing the complaint at the close of plaintiffs' case since questions of fact were presented (1) as to whether plaintiffs had adverse possession of the land in dispute under a claim of title, and (2) as to whether they were entitled to "tack" their possession onto that of their predecessors in order to establish an adverse holding for the requisite statutory period. (Civ. Prac. Act, § 40; see, also, Belotti v. Bickhardt, 228 N.Y. 296, 302, 306; Barnes v. Light, 116 N.Y. 34, 37, 39.) No opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER.