Entress v. Sours 272 A.D.2d 861

Order affirmed, without costs of this appeal to either party, with leave to appellant to institute such further action or proceedings on showing additional- facts as he may be advised. Memorandum: Whether the proceeding be treated as in the nature of mandamus or certiorari, through the failure of petitioner to reply to the affirmative allegation in the answer that Mareeta Road was a mere private way, and, in its entirety, on private property, such allegation was admitted to be true. (Civ. Prae. Act, § 1292; Matter of Marasco V. Morse, 22 N. Y. S. 2d 315, 323- [State report citation not available], affd. 263 App. Div. 1063, affd. 289 N. Y. 768; Matter of Mines v. La Guardia, 293 N. Y. 207, 216.) The petition disclosed that there were no occupied dwellings abutting on the road, so that section 198 of the Town Law did not apply. As the papers did not show that the town had an easement in Mareeta Road, section 199 of the Town Law was not applicable. Neither the approval by the Planning Board nor the recording or filing in the county clerk’s office, of the subdivision map, operated to make Mareeta Road a public street (Town Law, § 278). Both parties, treating the situation as presenting no question of fact, asked the court to determine the question solely on the papers submitted. Accordingly, we have reached the conclusion that, on this record, petitioner showed no right to any relief under article 78 of the Civil Practice Act. We do not now express any opinion as to whether upon a .different showing, petitioner may not be entitled, either by action, or proceeding, to compel the town to extend its water mains into Mareeta Road. All concur. (The order denies petitioner’s application for an order annulling the determination' of defendants and for an order requiring defendants to install a water main, and affirms the determination of defendants.) . . Present — Taylor, P. J., Harris, MeCurn, Larkin and Love, JJ.