Bernat v. ECHO SOC'Y OF NIAGARA FALLS, NY

7 N.Y.2d 914 (1960)

William J. Bernat et al., Appellants, v. Echo Society of Niagara Falls, N. Y., Incorporated, Respondent.

Court of Appeals of the State of New York.

Argued January 6, 1960.

Decided January 21, 1960.

Ira M. J. Hovey and Abraham R. Kushner for appellants.

Sigismund M. Lopacki for respondent.

Concur: Chief Judge DESMOND and Judges DYE, FULD, FROESSEL, VAN VOORHIS, BURKE and FOSTER.

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.