Majority
p. 935Mary A. Jones, as Administratrix of the Estate of John J. Jones, Deceased, et al., Respondents, v. Raymond L. Gebhardt et al., as Trustees of New York, Ontario and Western Railway Company, Appellants.
Judgment and order affirmed, with costs. All concur, except Taylor, P. J., and Vaughan, J., who
p. 936
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.