Opinion
Argued April 15, 1968
Decided June 14, 1968
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, PAUL D. GRAVES, J.
Lawrence Conboy for appellant.
Adam R. Palmer for respondent.
Order reversed and the judgment of Supreme Court, St. Lawrence County, reinstated, with costs, in a memorandum: Mere usage by the public of Water Road as relocated is not sufficient to convert this private road into a public highway absent a showing that the road was kept in repair or taken in charge and adopted by public authorities for the statutory period ( Pirman v. Confer, 273 N.Y. 357; People v. Sutherland, 252 N.Y. 86; Speir v. Town of New Utrecht, 121 N.Y. 420; Highway Law, § 189). The record does not show that there has been any exercise of public dominion over the road in question.
Concur: Chief Judge FULD and Judges BURKE, SCILEPPI, BERGAN, BREITEL and JASEN. Judge KEATING dissents in part and votes to reverse and to grant a new trial at which the plaintiff would have the opportunity to seek an amendment of its complaint and, if granted, to offer further proof to support a finding that the road in question has become a public right of way.