
    John McBride, Resp’t, v. The Orange County R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    Appeal—Verdict.
    Where the evidence as to the existence of a breach of a covenant was conflicting, hut the testimony of plaintiff, if believed, was sufficient to warrant a verdict in his favor, such verdict will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover damages for breach of a covenant, contained in a deed of lands to defendant, that it would construct a grade crossing at a given point. In July, 1889, plaintiff conveyed a right of way through his land to defendant by a deed containing such covenant, which right of way cut off three acres of his land. Defendant’s contractor raised an embankment three feet high along the right of way with ditches on each side, but built no crossing until April, 1890. By reason thereof plaintiff claims that he was unable to get his crops of hay and onions on his three acres to market, and was damaged thereby.
    Defendant claimed that the cutting off of plaintiff from the use of his lands was the act of an independent contractor, for which it was not liable.
    
      John J. Beattie, for app’lt; J. W. Gott, for resp’t.
   Dykman, J.

—This appeal presents no error. The defendant was bound, under the agreement with the plaintiff which was contained in his deed, to build and maintain a grade crossing for his use, and the action was for the recovery of damages resulting from a failure to perform that agreement.

Whether there was a breach of the, agreement was the question litigated upon the trial and submitted to the jury, and the verdict was for the plaintiff. The questions of fact being thus settled upon testimony sufficient to sustain the finding, the verdict and judgment cannot be disturbed.

The record presents no error, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.  