Kemp v. New York Central Railroad

246 A.D. 789

Opinion

Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum. The findings of the jury that any natural waterway existed upon or across the plaintiffs’ property and that the defendant by interfering with the course of White’s creek westerly of the plaintiffs’ property caused the waters of White’s creek to be cast upon the plaintiffs’ land are contrary to and against the weight of the evidence. Inasmuch as the proof in respect to the effect of defendant’s works and their maintenance west of Frear’s road upon the waters of White’s creek seems not to have been fully presented by the evidence, we grant a new trial. All concur. (The judgment awards damages in an action for damage to land. The order denies the defendant’s motion for a new trial on the minutes.) Present — Sears, P. J., Edgeomb, Thompson, Crosby and Lewis, JJ.