Opinion
June 12, 1967
Judgment of the Supreme Court, Nassau County, dated July 7, 1965, modified, on the law and the facts, by striking therefrom the decretal paragraphs numbered 2, 5 to 11 inclusive, 13 and 14 and by substituting therefor a provision that the property described in the decretal paragraph numbered 2 of the judgment was validly dedicated to the defendant Town of Oyster Bay as a public highway. As so modified, the judgment is affirmed insofar as appealed from, without costs. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. This consolidated action involves the rights of the parties to what had formerly been a private road forming a cul-de-sac, title to which was in the defendant High Farms Corporation, subject to an easement of access or right of way in favor of plaintiffs and the defendants Gifford and Frohlich as abutting landowners. High Farms was dissolved in 1946, and on July 24, 1962 it conveyed the road to the defendant Town of Oyster Bay by quitclaim deed executed by the defendant Gifford as president of the dissolved corporation. He was also the majority stockholder. In our opinion the fee owner of a servient tenement subject to a right of way may dedicate what he owns provided the dedication does not adversely affect the existing easement of right of way (see, Gerbig v. Zumpano, 7 N.Y.2d 327, 330; Dalton v. Levy, 258 N.Y. 161, 165-166; Kane v. New York El. R.R. Co., 125 N.Y. 164, 180; cf. 69 ALR 2d, Ann.). As burdens on the land, the public and private rights of way are substantially identical ( Matter of Village of Olean v. Steyner, 135 N.Y. 341, 346-347). The private easements of abutting landowners are not extinguished by dedication (see Gerbig v. Zumpano, supra; cf. Johnson Co. v. Cox, 196 N.Y. 110, 120-122); nor are they adversely affected thereby (cf. Dalton v. Levy, supra). Consequently, we find that the dedication herein was properly effected and was not prohibited by section 29 of the General Corporation Law. We further find that releases from the abutting landowners were not required by subdivision 2 of section 171 High. of the Highway Law, since these persons were not "the owners of lands taken or affected" by the dedication. Ughetta, Acting P.J., Christ, Rabin, Benjamin and Munder, JJ., concur.