
    Fourth Department,
    July, 1919.
    Orange A. Green, as Trustee in Bankruptcy of Blaine Gook and Others, Appellants, v. New York Central and Hudson River and Railroad Company, Respondent.
    
      Railroad — duty to keep culvert free.
    
    Appeal from a judgment of the Supreme Court in favor of tifendant, entered in the Monroe county clerk’s office on the 8th day of ¡h, 1918, upon the verdict of the jury made on direction of the court.
    Judgment and order affirmed, with costs. All concurred, exciambert, J., who dissented in a memorandum; Hubbs, J., not sitting.
   Lambert, J. (dissenting):

The defendant dug a ditch and erad water' therein. To take care of the water so collected and other w it built a culvert under its tracks. The jury would have been justified iding the following facts: that the culvert was constructed in a defective aegligent manner; that defendant permitted the culvert to become clog so that very little water could pass through it, and that the defendant ho tice of such condition; that the culvert, even in its defective conditiomld have carried off sufficient water to have prevented the flooding ilaintiffs' buildings, i had not been clogged with timber and debris; that the water so eolleetejy the defendant in its ditch contributed to the water which flooded tblaintiffs’ buildings. If the jury had found as above stated it would b been justified in finding the defendant negligent and awarding damages the plaintiffs. When the defendant dug the ditch and built the culveit assumed the legal obligation of exercising reasonable care to take caff the water collected in the ditch and to keep the culvert free and clear obstructions. I believe that there was a clear question of fact which shd have been submitted to the jury and that it was error to direct a vict in favor of the defendant. I, therefore, vote to reverse the judgmental order.  