
    PATERNOSTRO v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 28, 1913.)
    Waters and Water Courses (§ 126)—Obstruction of Drain—Sufficiency of Evidence.
    Evidence in an action for the obstruction of a drain while an old system of drainage was being supplanted by a new arrangement held insufficient to show that in the meantime there was a negligent interruption of the drain by the defendant railroad company.
    [Ed. Note.—For other cases, see Waters and Water Courses, Cent. Dig. §§ 139, 141, 142; Dec. Dig. § 126.*]
    Appeal from Trial Term, Westchester County.
    Action by Frank Paternostro against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial granted.
    Argued before JENKS, P. J, and THOMAS, CARR, STAPLE-TON, and PUTNAM, JJ.
    John F. Brennan, of Yonkers, for appellant.
    Holmes Jones, of Tuckahoe, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The evidence shows that the old system of drainage was continued until the new arrangement was completed in 1909. The question is whether meantime there was a negligent interruption of it. Of that there is not sufficient evidence. The evidence tends to show that the culvert continued effective. But the plaintiff testified to the free condition of his pipe, that there was water in it, and in the common drain as it met the culvert, but that no water came through to the west side. But he states that he saw the culvert. If the defendant had covered it, he could not have seen its end. He does not state that he saw any indications that the embankment or material connected with the work had encroached on the outlet of the culvert. The stoppage of the .culvert is not traced to any act of the defendant.

The judgment and order should be reversed, and a new trial granted; costs to abide the event.  