Opinion
May 24, 1950.
Present — Taylor, P.J., Love, Vaughan, Kimball and Piper, JJ. [ 195 Misc. 484.]
Judgment affirmed, with costs. Memorandum: The record contains sufficient proof to permit the trial court to find that the flood damage to claimants' property on the shore of Oneida Lake resulted from inadequate flood control facilities then maintained by the State of New York on the Oneida River at or near its dam at Caughdenoy. We reject, because of failure of proof, defendant's contentions that the high water which damaged claimants' properties would have been present with the same result if the State had never erected its dam at Caughdenoy, and that the State of New York has acquired by prescription the right to flood the lands of claimants to the extent disclosed by the evidence herein. The admission in evidence of the judgment and findings in Haskell v. State of New York (13 N.Y.S.2d 192) to establish facts showing negligence on the part of the employees of the State in the operation of the flood control facilities or to establish facts showing negligent construction and maintenance of the dam, or to establish facts upon which claimants' engineer could base an expert opinion as to negligent construction and maintenance of said dam, or its flood control facilities or the negligent operation thereof, was clearly erroneous. ( Stone v. State of New York, 138 N.Y. 124.) Such error, however, we feel is not fatal in view of the court's finding that claimants failed to establish negligent operation of the existing flood control facilities and the testimony of defendant's engineer Crocker that there had been no changes in the physical structures at Caughdenoy since the Haskell decision ( supra). All concur. (The judgment appealed from is for claimants on a claim against the State to recover property damage alleged to have been caused by negligence in maintenance of Barge Canal dam.)