Opinion
February 17, 1959
Judgment so far as appealed from unanimously affirmed, with costs to the plaintiffs-respondents. The third-party defendant's contention that the tide which caused the damages was unprecedented does not suffice to undermine the verdict and judgment. There had been previous lesser floods of the pier and an issue of fact was tendered whether the precautions, suggested by the previous floods, had been taken. Thus, a flooding of the pier of less than the unprecedented level which occurred would have caused some of the damage. Since the parties stipulated the amount of the damage, the jury was not required to assess how much of the damage was due to the failure to take these precautions. On this view, the further argument of the third-party defendant that there was "nothing" it could have done to prevent the damage is of no avail on this record, howsoever that issue might be raised in another case.
Concur — Botein, P.J., Breitel, Rabin, McNally and Bergan, JJ.