Kerrick v. Erie Railroad

Judg*937ment and order reversed and new trial granted, with costs to appellant to abide event. Held, 1. That the evidence is not sufficient to sustain a finding that the headlight of the engine was not lighted at the time of the accident, and the exception to submitting that question to the jury was well taken. 2. That the court erred in charging in substance that a period of twenty years was necessary to effect an abandonment of a highway by nonuser. The statute requires but six years. (Highway Law, § 234;* Town of Leray v. N. Y. C. R. R. Co., 226 N. Y. 109; Shipston v. City of Niagara Falls, 187 App. Div. 421.) All concur.