Kenney v. State , 274 A.D. 823 ( 1948 )

Per Curiam.

The appellant Kenney presented a claim against the State of New York for the negligent construction of a portion of the New York State Highway which ran parallel to Pea Brook in Sullivan County. The claimed negligence arose through altering the course of the stream which caused it to overflow and wash away claimant’s house and to otherwise injure his premises at the time of a heavy rain.

The claim by the partnership Leonard Diener and Louis Liebman, doing business as The Long Eddy Chemical and Charcoal Company, also appellants, is for comparable damages to a manufacturing plant located upon lands in the vicinity of those owned by Kenney.

The facts upon which claimants rely are that in 1934 and 1935, the State constructed about six miles of improved highway through Pea Brook Yalley and in connection therewith made eleven changes in the channel of the brook. The valley is narrow, varying in width from 110 to 200 feet. The plans of the State, it is asserted, provided for too steep a slope adjacent to the highway and an inadequate amount of riprap, so that the rise in the creek level due to the heavy but not unprecedented rain in May, 1942, uprooted trees and displaced rocks and earth, cutting off the stream and diverting its course into other channels, causing the damages.

The damages are stipulated as to one claimant and not seriously litigated as to the other.

Judgment dismissing on the merits the claim of John P. Kenney, claim No. 27799 against- the State of New York, reversed on the law and facts, and judgment rendered in favor of John P. Kenney for the sum of $8,873.81.

The court reverses the following findings of fact contained in the decision of the court below:

That portion of finding No. 8 which reads, “ and riprap was unnecessary.”

Findings Nos. 9, 10, 14, 15, 16, 17, 18, 19 and 20 and conclusions of law ' Nos. 1, 2 and 3 are disapproved.

This court also makes findings of fact contained in claimant’s requests to find which were made in the court below and makes the following additional findings contained in claimant's requests Nos. 19, 20, 21, 22, 23, 26, 27, 28, 32, 33, 34, 35, 36, 49, 50, 54, 59, 60, 61, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 83, 84, 85, 87, 88, 89, 90, 91, and finds as conclusions of law the ten numbered paragraphs contained in claimant’s requests to find. .

This court disapproves the findings of fact made by the court below contained in the State’s requests to find, Nos. 18, 19, 20, 21, 25, and disapproves the conclusions of law Nos. 1, 2 and 3 contained in the State’s requests to find.

Judgment dismissing on the merits the claim of Leonard Diener and Louis Liebman, copartners doing business as The Long Eddy Chemical and Charcoal Company, against the State of New York, claim number 27800, reversed on the law and facts and judgment rendered in favor of the copartners for the sum of $15,000.

The court reverses the following findings of fact contained in the decision of the court below:

The following words from finding No. 8, “ and riprap was unnecessary.”

The court reverses findings Nos. 9, 10, 14, 15, 16, 17, 18, 19 and 20 and disapproves the conclusions of law Nos. 1, 2 and 3.

This court also makes the findings of fact contained in the claimants’ requests to find Nos. 3, 5, 19, 20, 21, 22, 23, 26, 27, 28, 32, 33, 34, 35, 36, 41, 49, 50, 54, 59, 60, 61, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 76, 77, 78, 80, 81, and disapproves the conclusions of law Nos. 2, 3, 5, 7, 8, 9 and 10 and disapproves the findings of fact contained in the State’s requests to find Nos. 18, 19, 20, 21, 25, 26, and disapproves the conclusions of law found in the State’s requests to find.

Hill, P. J., Heffernan, Brewster, Foster and Russell, JJ., concur.

Judgment accordingly. [189 Misc. 192.]