Gillies v. Orienta Beach Club & Orienta Realty Corp. , 248 A.D. 623 ( 1936 )

In an action brought to restrain the defendants from interfering with alleged rights of plaintiffs, based entirely upon the asserted right of custom, order granting defendants’ motion to dismiss the complaint for failure to state a cause of action and judgment entered thereon unanimously affirmed, with ten dollars costs and disbursements. We are in accord with the decision made at the Special Term and agree with the conclusion there reached that the right of custom contended for by the plaintiffs does not exist in the State of New York and that, even if it did, the right claimed by the plaintiffs, in this action, is beyond the scope of the right of custom recognized by the English law, and, furthermore, that the user alleged in the complaint is for a time insufficient to establish the right of custom as recognized by the English law.. Young, Hagarty, Carswell and Taylor, JJ., concur; Lazansky, P. J., concurs on the ground that easement by custom does not here exist. [159 Misc. 675.]