Order denying defendants’ motion to dismiss complaint affirmed, with ten dollars costs and disbursements, with leave to defendants to answer within ten days from service of a copy of the order herein. The complaint states facts sufficient to warrant a trial to determine whether defendants’ acts with reference to the right of way estopped them from denying the plaintiff’s right thereto.
Lazansky, P. J., Young and Tompkins, JJ., concur; Hagarty, J., with whom Carswell, J., concurs, dissents and votes for reversal and a dismissal of the complaint, with the following memorandum: The complaint does not state facts sufficient to constitute a cause of action. Plaintiff, in the use of that part of the driveway which was built upon defendants’ property, was a mere licensee.
She does not claim to have acquired an easement in defendants’ real property by grant or prescription, which are the only ways an easement can be created. (Nellis v. Munson, 108 N. Y. 453; G. L. & P. J. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 id. 435.) City of N. Y. v. N. Y. & S. B. Ferry & S. T. Co. (231 N. Y. 18), relied upon by the learned Special Term, is not in conflict with these rules of law. Since plaintiff had a right to build upon her own property, the defendants were under no obligation to protest.
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