Jones v. Gebhardt

277 A.D.2d 935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 1950
• Status: Published

Opinion

Judgment and order affirmed, with costs. All concur, except Taylor, P. J., and Vaughan, J., who dissent and vote for reversal and for granting a new trial in the following memorandum: We dissent and vote for reversal and a new trial. Implicit in the verdict is the finding that the defendant by its act in removing the culvert from underneath the railroad embankment, blocked a watercourse. Plaintiff’s engineer gave the source of the stream as west of Vienna Avenue and its course as southerly in a definite watercourse through the swamp to the north of the railroad embankment. A finding to that effect is clearly against the weight of evidence. Moreover, the photographs indicate at best a flooding of a temporary nature due to surface water rather than of a permanent nature which would follow the blocking of a watercourse. (The judgment appealed from is for plaintiffs in an action for damages alleged to have been caused to plaintiffs’ summer property by reason of negligent failure to maintain a culvert. The order denies a motion for a new trial.) Present — Taylor, P. J., McCurn, Vaughan,'Kimball and Piper, JJ.