
    Joseph Sawyer, Respondent, v. Louie Robinson, Appellant.
   Aulisi, J.

Appeal (1) from a judgment of the County Court of Schoharie County in favor of plaintiff, entered May 20, 1966, in said county, upon R verdict rendered at a Trial Term, and (2) from an order of said court, entered June 10, 1966, which denied defendant’s motion to set aside the verdict. This action was brought by respondent to foreclose a mechanic’s lien which he asserts arose on account of services and materials furnished in the course of drilling a well on appellant’s property. The findings of the jury implicit in its verdict, following a charge to which no exception was taken, that the well was “ voluntarily abandoned” by the defendant Robinson, was considered “an abandoned well ” and that the action of the plaintiff in removing the casing and destroying the well was “in accordance with an agreement with Mr. Robinson and with Mr. Robinson’s consent ” were contrary to the weight of the evidence and cannot be sustained. Judgment and order reversed, on the law and the facts, and a new trial ordered; with costs to abide the event. Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Aulisi, J.  