Kemp v. New York Central Railroad Company

Full title: CHARLES KEMP and MINNIE E. KEMP, His Wife, Appellants, v. NEW YORK CENTRAL…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Jun 28, 1938

254 App. Div. 925 (N.Y. App. Div. 1938)

Opinion

June 28, 1938.

Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.

Judgment affirmed, with costs.

All concur, except Cunningham, J., who dissents and votes for reversal on the law and for granting a new trial, in the following memorandum:

The defendant having elected to construct a culvert to carry away the surface water which accumulated upon its lands was charged with the duty of keeping such culvert in repair and free from obstructions. ( Mitchell v. N.Y., L.E. W.R.R. Co., 36 Hun, 177; Branson v. N.Y.C. H.R.R.R. Co., 111 App. Div. 737.) (The judgment is for defendant in an action for property damage caused by flooding of farm land.)