Diamond International Corp. v. Little Kildare, Inc.

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 óf 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.