Iodice v. State, Claim 28103

Claim 28103 | NY | Dec 7, 1951

303 N.Y. 740" date_filed="1951-12-07" court="NY" case_name="Iodice v. State">303 N.Y. 740 (1951)

Gaetano Iodice et al., Appellants,
v.
State of New York, Respondent. (Claim No. 28103.)

Court of Appeals of the State of New York.

Argued October 16, 1951. Decided December 7, 1951

John P. Gualtieri and G. Edward La Gatta for appellants.

Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondent.

Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ. Dissent: FROESSEL, J.

Judgment affirmed, without costs; no opinion.

FROESSEL, J., dissents in the following memorandum:

I dissent and vote for reversal for the reasons stated in the dissenting opinion below (277 App. Div. 647, 654). Moreover, the evidence is uncontradicted that the natural flow of water was substantially increased by waters continuously diverted into the Delta Reservoir during July, August and through September 15, 1945, through the artificial Forestport feeder created and controlled by the State.