Opinion
December 12, 1975
Appeal from the Wayne County Court.
Present — Marsh, P.J., Moule, Cardamone, Goldman and Witmer, JJ.
Order unanimously reversed, on the law and facts, judgment of Justice Court of Town of Sodus vacated and a new trial granted, with costs to abide the event. Memorandum: This appeal involves a controversy over the right to construct a lakeside dock in a particular location. Each party has an instrument, referred to as a "license", which purports to give him permission to "erect a dock". Although one of the persons who signed the so-called "license" was a trial witness, no inquiry was made by either party as to the ownership of the land. The question of title to the property at the dock location was completely avoided and, therefore, the authority of the alleged licensor to grant permission could not be resolved. From the record before us both the plaintiff and defendant would be squatters upon the land and neither had the right to succeed in this summary proceeding to recover real property pursuant to article 7 of the Real Property Actions and Proceedings Law. A new trial should be had at which the title question should be fully explored and once that is determined the trial court will be in a position to adjudicate the rights of the parties.