Naramore v. State

258 A.D. 930 | N.Y. App. Div. | 1939

— Judgment reversed on the law and facts, with costs, and ■claim (dismissed. Certain findings of fact and conclusions of law disapproved ¡and Reversed-and new findings and conclusions made. Memorandum: There was ¡evidence to sustain -the finding -that the .State was negligent in suddenly releasing into Irondequoit-creek large-and unusual quantities of water from the Barge Canal at the seventeen-mile level in Monroe county, taking into consideration the fact that Irondequoit creek was .frozen over and the .pond in front of claimant’s dam was -likewise frozen to a depth of .about two feet and .that claimant’s dam failed due to the action of this water upon the ice at the dam. The evidence, however, is quite conclusive that the claimant was eontributorily negEgent in that he failed to maintain, as he had done in previous years, a channel in the ice in front of his dam so as to permit excessive quantities of water to flow over the dam and to prevent the thermal expansion of the ice against the dam. The finding that claimant was free from negligence is contrary to and against the weight of the evidence. All concur. (The judgment is for claimant on a claim for damages resulting from negligent operation of the Barge Canal) -Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, J..