Weismantle v. State

229 A.D. 824

Opinion

Per Curiam.

The amount of land affected by loss of fertilization was a question of fact. The court allowed damages to fifteen acres. Appellant on the argument insisted that it amounted to twenty-seven and sixty-two one-hundredths acres. As we read the testimony of plaintiff’s witness Crocker, we think that the trial court was justified in finding that no more than half of the twenty-seven and sixty-two one-hundredths acres was affected. During the giving of the testimony of the witness Crocker, there was an apparent assent of counsel and the court, as indicated by the latter’s statement “ that one-half of this twenty-seven and sixty-two one-hundredths acres was the damage that had been done to the claimant’s farm by reason of this damage in the flow of water.” All concur. Present — Sears, P. J., Crouch, Edgcomb, Thompson and Crosby, JJ. Judgment affirmed, with costs.