dissents and votes to affirm, with the following memorandum: In my opinion the proof did not establish a private easement by prescription, in plaintiffs’ favor, over the four-foot wide walk alongside their property, because there was no sufficient showing of exclusive adverse use by them before 1963, when they fenced in that walk; and their exclusive adverse use thus has lasted far less than the required 10 years (see Real Property Actions and Proceedings Law, § 311; Scallon v. Manhattan Ry. Co., 185 N. Y. 359, 363; Belotti v. Bickhardt, 228 N. Y. 296, 302). Nor was that walk a public highway by prescription before 1963, even though it was then used by the general public, since it was not “kept in repair or taken in charge and adopted by the public authorities” (De Haan v. Broad Hollow Estates, 3 A D 2d 848). If it were assumed arguendo that there was an easement, it would have been extinguished by the tax lien sale through which defendant Kramer acquired title. This is so because the sale was for taxes for the years 1899 to 1909 and the walk was not built until 1927. The tax liens thus antedated whatever easement might have been so created; and an easement survives a tax lien sale only if it was in existence when the tax lien was established (Tax Lien Co. v. Schultze, 213 N. Y. 9, 12; Wilkinson v. Nassau Shores, 1 Misc 2d 917, 924, affd. 278 App. Div. 970, mod. on other ground 304 N. Y. 614; Loening v. Bed Spring Land Co., 198 Misc. 151, 153, affd. 277 App. Div. 1050). I also think plaintiffs’ laches bars any right to relief they may have. Defendants started to excavate on April 30, 1964 and their buildings were enclosed on May 24, 1964. Yet plaintiffs did not start this action until July 29, 1964. Clearly, there was a substantial change in defendants’ position during the period of plaintiffs’ inaction.