
    Alexis Witte, Respondent, v. Elizabeth Koerner, Appellant.
    Second Department,
    January 24, 1908.
    Equity— appeal —review Of findings of fact — exception unnecessary — highway — dedication and acceptance — evidence —■ burden of proof.
    The appellate court will review the facts in a suit in equity although there be no exceptions to the findings.
    
      It seems, that an exception can only be taken to a ruling' on questions of law; a finding of fact without any evidence tending to sustain it being deemed -such.
    The Appellate Division on an appeal from a judgment on the report of a referee or decision of the court upon a trial without a jury, is required to review the facts. , ■ ■
    The fact that there is no record in the office of a town clerk showing a particular Highway, while sufficient to warrant a finding that no such highway has been officially laid out as provided by statute, does not prove that such highway does not exist by prescription, or by dedication and acceptance actual or implied.
    Implied acceptance of a dedicated highway may be found from use by the public although the highway was never recognized by the public authorities.
    Evidence in a suit for specific performance examined and held sufficient to estab fish that a public highway bounding the premises existed by prescription, or by dedication and implied acceptance by user, or by both.
    A vendee of lands refusing to take title and seeking to recover the earnest money upon the ground that the premises were not bounded by a public highway as stated in the contract, is under the burden of showing that fact.
    Rich, J., dissented on opinion below.
    Appeal by the defendant, Elizabeth Koern§r, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the-county of Nassau on the 6th day of Mays 1907? upon the decision of the .court' rendered after a trial at the Nassau Special Term.
    
      Henry C. Burnstine [Benjamin Haas with him on the brief], for the appellant.
    
      Daniel Underhill, for the respondent.
   Miller, J.:

The action is brought by the vendee for specific performance of a contract of purchase and sale of real property. He had judgment for the return of his deposit and for damages, on the ground that the defendant could not give a marketable title. The premises were described in said contract as bounded on the east.“ by land of Division Avenue,” and the plaintiff alleges that the title is unmarketable for the reason that there is no public avenue or street on the east of said premises and no access thereto except over private property. •

The respondent asserts that we cannot review the facts for the reason that no exceptions to the findings of fact were filed. An exception is only necessary to raise a question of law;. indeed, it would seem that an exception can.-o.uly be taken to a ruling on a question of law, a finding of fact without any evidence tending to sustain it being deemed such. (Code Civ. Proc. §§ 992, 993, 994.) This court is required to review the facts. (Code Civ. Proc. § 993; Henderson v. Dougherty, 95 App. Div. 346.)

There is no question but that the vendor had title to the premises which she contracted to convey. The record does not disclose anything affecting the marketability of her title, and the plaintiff had to prove the facts dehors the record relied upon to affect the marketability of title. (Greenblatt v. Hermann, 144 N. Y. 13.) It may be assumed that the description of the premises as bounded by an avenue imported at least that there was access to the premises over some public road or street, and that the absence of such access would affect the marketability of title.' The trial court found 'that there was no public highway adjoining the premises, and we must examine the record to ascertain whether that finding was justified.

The plaintiff put in evidence the map of a surveyor employed by him. This map indicates an avenue 100 feet wide, the center line thereof being the easterly line of said premises. It appears that said premises were a part of a larger tract called the “ Keller ” tract, bounded on the east side by premises known as the Yan Yechten” tract; that in .1854 the latter tract was plotted and a map thereof filed in the"county clerk’s office of Queens county, upon which was indicated Division Avenue,” a street 100 feet wide, the center line thereof being the boundary line between said tracts. A copy of said map was also filed in the clerk’s office of Nassau county after that county was created. The surveyor called by the. plaintiff testified that there was a traveled roadway on the property in question close to the easterly line thereof. A witness called by the plaintiff, who owns the property bounding the premises in question-on the east, testified that wagons, horses and pedestrians passed through Division avenue to what is known as the “ old country road; ” that Division avenue has been constantly traveled upon up and down, the same as they would on the plains.” There is a certificate of the town clerk in evidence to the effect that there is no record of a highway known as Division avenue in the highway records of the town clerk’s office. Said certificate may be evidence sufficient to warrant a finding that nti such highway has been officially laid-out as provided by statute, but that does not prove that such a highway did not exist by prescription or by dedication and acceptance, actual or implied. (See City of Cohoes v. D. & H. C. Co., 134 N. Y. 397.) There are doubtless a great many highways in the State of whose laying out there is no record, and many that never were officially laid out. Now it does appear from the plaintiff’s evidence that the alleged highway was well known in the neighborhood as Division avenue; it is shown on a public record now nearly fifty-four years old; it has been constantly traveled upon, how long does not appear. It does not appear whether the public authorities have ever recognized -it, but implied acceptance may be found from use by the public. Whatever evidence there is in - the record tends to show that there is a public higlnvay on the east of the premises in question, existing by prescription, or by dedication and implied acceptance by user, or by both. It may be granted that the proof .is not as clear and satisfactory as it might be, but whatever proof there is tends to show such a highway; whereas, in order to succeed, the plaintiff had to show that there was none. For this reason 1 think the judgment should be reversed on the facts.

Jenks, Hooker and Gaynor, JJ., concurred; Rich, J., voted for affirmance upon the opinion of Mr. Justice Scudder at Special Term.

Judgment reversed and a new trial granted, costs to abide the final award of costs.  