
    Patrick Crowley, Appellant, v. The State of New York, Respondent.
    Third Department,
    May 2, 1906.
    Court of Claims—when award of damage for injury to crops by overflow of canal is insufficient — Appellate Division will not modify award of Court- of ■ Claims in absence of finding as to damage.
    When a -claimant against the State for damages caused to crops by the overflow of a State canal has proved damage to the extent of §900, the Court of Claims - has ño power to reduce the damage to §300. on‘the theory that'the injury was caused partly by heavy .rjiins, in the absence of evidence that any damage was in fact caused by rains. The mere fact that rain's .were heavy .at that period does not of itself prove that the claimant's crops were injured thereby.
    But the Appellate-Division in the absence of a finding by the Court of Claims as • to the amount of damage is without jurisdiction to make a new finding' as to damage in accordance with the evidence, and carl only grant a new trial when . the award is insufficient. • '
    The Appellate Division has only the. same power to affirm, reverse or modify a 'judgment of the: Court of Claims that it has in respect to judgments cf the Supreme Court.
    Appeal by the claimant, Patrick Crowley, from a judgment of the- Court of Claims of -the .State of New York i'n favor of; the claimant, entered in the office of the clerk of said court on the 1st day of. November, 1905, on the grounds, of the insufficiency of the award. i '
    
      Brodie G. Higley, for the appellant.
    
      Julius M. Mayer, Attorney-General [ Willis JJ. Tennant, of counsel], for the respondent.
   Smith, J.:

This appeal is taken on the ground of the insufficiency of the damages. Claimant’s land was injured by an overflow from the canal caused by the negligence of the employees of the State. These facts are established for the purposes of this action by the judgment against the defendant for the sum of $300. Claimant rented sixteen acres of land adjoining the Champlain canal. One acre Was kept as grass land, upon one acre he planted corn and upon fourteen acres he planted a special variety of potatoes which was used for seed potatoes in Cuba and for which he got eighty-three and one-lialf cents per bushel that year. The ordinary crop of potatoes in that land was 150 bushels to the acre. This overflow occurred July 24, 1902. After the overflow the ground yielded only seventy bushels of potatoes to the acre and practically no corn, so that the claimant’s damages proven without contradiction amounted to about $900. The only justification which the Attorney-General makes of this reduction of the damages proven from $900 to $300, the amount of the award, is that the court took into consideration that the injury to the potato crop was due in part only to the overflow of the canal and in part to the hard rain. He asks us to hold as matter of law where the injury to crops is attributable to two causes, for one of which the State is liable and for one. of which the State is not liable, that the damage which the State must pay is only proportionate to the in jury by waters flowing over land through the negligence of the State. The difficulty with his proposition is that the facts proven in this case do not make appli-' cable the rule. Hard rains do not harm a crop of potatoes as far as any evidence shows unless they cause the flooding of the land.

The record does not present a clear picture of- the territory surrounding the land. The only stream which could overflow the land, apart from the canal, would seem to be Wood creek, which is situated about a quarter of a mile east. There is no evidence that that creek has ever risen so high as to flood this land. Between this land and the creek was' the railroad. The evidence is wholly to the effect that this creek never overflowed upon this land. The record presents no evidence of -any other cause of injury to the claimant’s crops than the overflow of the canal. Claimant’s evidence as to the extent of damage is corroborated by other witnesses and wholly uncontradicted in the evidence: The verity of claimant’s evidence is not attempted to be shaken by cross-examination evenl Moreover, plaintiff Was precluded from further fortifying his evidence, of damage by the ruling of the court that no further evidence wa,s called for, and the déclaration of counsel for the State that the State would offer nó evidence about the value of the lands, or the crops. The Court. of Claims has apparently arbitrarily divided the claimant’s proven damage by three and given him- only onedhird thereof.

We are asked instead of granting a new trial to-ourselves modify the judgment and give claimant .judgment for the sum which the undisputed evidence shows to have been his. damage. We are of the opinion that, we are without power to grant this request. The power given us by the statute is to affirm, reverse or modify the judgment of the Court of Claims. ' (Code Civ. Proc. § 275)., The same power is given to this court in review of a judgment of the Supreme Court. (Code Civ. Proc. §1317.) Under well-settled authority we would not have this power if this • appeal' were from a judgment of the Supreme Court for insufficiency of damage. We know of no different rule of* interpretation' which would give us a greater power on an appeal from a judgment of the Court of -.Claims. In Sayre v. State (123 N. Y. 291), which- has been often cited to Us in support of a similar request, the judgment as finally given by the court was in accordance With the findings of the Board of Claims, whose award Was under review. Without-a finding by the Court of Claims as to the extent of the damage as'claimed by claimant to have been caused by defendant’s negligence* we are not authorized to make a new finding in accordance with which we' may modify this judgment. The judgment should, therefore, be reversed, with costs, and a'new trial granted.'

All concurred.

'Judgment reversed, with- costs, and new trial granted;  