
    John Garwood, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Court of Appeals,
    
    
      October 8, 1889.
    Affirming 40 Hun, 635, Mem.
    
      _Evidence. Damages.—In an action for withdrawing water from a stream, evidence that, after the division, there was less water in the stream during the summer months than before, is relevant, and its exclusion error.
    Appeal from an order of the general term, reversing a judgment, which dismissed the complaint with costs, and was entered upon the report of a referee.
    
      James B. Perkins, for respondent.
    
      Daniel H. McMillan, for appellant.
   Per Curiam.

The defendant began taking water from "the creek about November, 1869. The plaintiff was not permitted to prove that after this date there was less water in the stream during the summer months than before. This was a relevant fact. Its probative force'would depend upon a variety of other facts, like the rainfall of the particular season, to be developed upon cross-examination, or by the examination of other witnesses. For this error of the referee, the order of the general term must be sustained, and a judgment absolute ordered in favor of the plaintiff, witli costs.

All concur, except Bradley and Haight, JJ., not sitting.  