
    Ella L. Peterson, Appellant, v. Andrew McAllister and Mary F. McAllister, Sued as “Mary” McAllister, the Name “Mary” Being Fictitious, the True First Name of Said Defendant Being Unknown to Plaintiff, Respondents.
   Amended judgment, in so far as appealed from, reversed on the law and a new trial granted, costs to abide the event. The learned Special Term dismissed the complaint at the close of plaintiff’s evidence upon the sole ground that the alleged easement, not having been conveyed by a deed or conveyance in writing, etc., was void. This ruling was erroneous. As the alleged agreement had been fully performed by both parties, that statute had no application, and the trial court should have passed upon the question of fact, as to whether the parties to the parol agreement intended that plaintiff should have an easement over the driveway in question, or a mere license, which license defendant was entitled to and did revoke. Young, Hagarty and Tompkins, JJ., concur; Lazansky, P. J., dissents and votes to affirm on the following ground: Without reference to the alleged oral arrangement, the acts of plaintiff and the use of the road are as consistent with the grant of a revocable license as they are with the grant of an easement. In such case the Statute of Frauds is a good defense to the claim of easement. Kapper, J., dissents on the ground stated by Lazansky, P. J., and on the further ground that the so-called easement does not run with the land and a subsequent purchaser without record notice cannot he hound by the oral arrangement with the predecessor in title.  