
    Gertrude A. Manley and Another, as Executors, etc., of Marrinus W. Manley, Deceased, Respondents, v. The New York Central Railroad Company, Appellant.
    Fourth Department,
    November 7, 1929.
    
      
      Halsey Sayles, for the appellant.
    
      James O. Sebring [Edwin J. Carpenter of counsel], for the respondents.
   Per Curiam.

The flow of surface waters is the subject of this case. While there is evidence that the flow of such waters from the premises of plaintiffs’ testator on and through the lands of the defendant has been blocked by the act of the defendant, such blockage has been occasioned by improvement and maintenance of defendant’s railroad fine. In improving its property, the defendant was within its right, even though it blocked off the flow of surface water from decedent’s property. (Barkley v. Wilcox, 86 N. Y. 140.) We find no evidence of bad faith, negligence or arbitrary action. The judgment and order should be reversed on the law and the facts and the complaint dismissed, with costs.

All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Crosby, JJ„

Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs.  