
    Manley Ackerman et al., Respondents v. Carl J. Burch, Appellant.
    (Appeal No. 1.)
   — Order unanimously reversed, without costs and motion for summary judgment denied. Memorandum: This is the second time this action has been before us on defendant’s claim that he has a right of way through the center of the property now owned by plaintiffs. On the first appeal (35 A D 2d 770) we stated that, althpugh defendant’s “contentions are not very impressive ”, we held that he “ should be given an opportunity to interpose his defense ” and present proof which he asserted existed to support his position that he did have a right of way. Although the County Court’s memorandum acknowledged that “It may well be that defendant is entitled to an easement of necessity ”, the court held that defendant had failed “to create a triable issue of fact”. We find that the supplemental affidavit of James O’Shea, the aerial maps and photographs raise, an issue of fact as to the existence of a right of way by implication which cannot be resolved without a trial. In view of this decision the motion to hold in contempt is denied without prejudice to renew if there is further violation. (Appeal from order of Allegany County Court, in action under article 15 of the Real Property Law.) Present — Goldman, P. J., Del Vecchio, Witmer and Cardamone, JJ.  