Majority
p. 911Frank Paternostro, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
Headnote
Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 28th day of March, 1913, in favor of the plaintiff, and from an order entered in said clerk’s office on the 26th day of April, 1913, and from said order as resettled by an order entered in said clerk’s office on the 7th day of May, 1913, denying a motion for a new trial.The evidence shows that the old system of drainage was continued until the new arrangement was completed in 1909. The question is whether meantime there was a negligent interruption of it. Of that there is not sufficient evidence. The evidence tends to show that the culvert continued effective. But the plaintiff testified to the free condition of his pipe, that there was water in it, and in the common drain as it met the culvert, but that no water came through to the west side. But he states that he saw the culvert. If the defendant had covered it, he could not have seen its end. He does not state that he saw any indica
p. 912
tions that the embankment or material connected with the work had encroached on the outlet of the culvert. The stoppage of the culvert is not traced to any act of the defendant. The judgment and order should be reversed and a new trial granted, costs to abide the event. Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.