Opinion
278 A.D. 615 101 N.Y.S.2d 831 JACK AUSLANDER et al., Appellants, v. ETTA STRAIN et al., Respondents. Supreme Court of New York, Third Department. January 10, 1951
Appeal from a judgment of the Supreme Court, Delaware County, entered September 29, 1948, in favor of defendants. In 1906 plaintiffs' predecessor in title to land executed a dedication of a portion of the land for a town highway. This instrument was recorded in the Colchester town clerk's office with an order by the commissioners of highways laying out a town highway. The statute then provided (former Highway Law, § 80, as amd. by L. 1904, ch. 387) that the owner of land could execute a 'release of the land' which, when recorded in the town clerk's office with an order of the commissioners laying out a highway would become a town highway by dedication. Plaintiffs contend that the title they acquired in 1935 could only have been affected by a conveyance recorded in the county clerk's office under the Recording Act. But this subject was provided for by a special statute which supersedes the effect of a general statute. The instrument of dedication was not a conveyance, but a release, and, being recorded where the statute directed, it gave sufficient notice of the dedication for highway purposes when plaintiffs acquired title. There is proof that the highway had been used for forty years at the time plaintiffs took title and was both physically apparent to them then, and constituted a dedication by long and open public usage, as the court could find on this record. Plaintiffs themselves used a part of the road which was the only means of access to their property. Judgment unanimously affirmed, with costs to respondents.
Present--Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ.