Garwood v. New York Central & Hudson River Railroad — 26 N.Y. St. Rep. 620

Majority

p. 620

John Garwood, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.^[1]

(Court of Appeals, Second Division,

Filed October 8, 1889.)

Headnote

Water course — Diversion of water — Evidence in regard to.

In an action for damages caused by defendants withdrawing water from the stream upon which plaintiff’s grist mill is situated, it is error to exclude evidence on the part of plaintiff, showing that the season of low water was largely increased thereby.

Reported 2 N. Y. State Rep., 701.

Appeal from an order of the general term of the supreme court in the fifth judicial department, reversing a judgment which dismissed the complaint with costs, and was entered on the report of a referee.

James B. Perkins, for resp’t; Daniel H. McMillan, for app’lt.

The defendant began taking water from the creek about November, 1869. The plaintiff was not permitted to prove that after this date there was less water in the stream during the summer months than before. This was a relevant fact. Its probative force would depend upon a variety of other facts, like the rainfall of the particular season, to be developed upon cross-examination, or oy the examination of other witnesses. Bor this error of the referee, the order of the general term must be sustained, and a judgment absolute ordered in favor of .the plaintiff, with costs.

All concur, except Bradley and Haight, JJ., not sitting.