
    Vincent Kehoe, as General Guardian of Charles Kehoe, an Infant, et al., Respondents, v Incorporated Village of Valley Stream et al., Defendants, and County of Nassau, Appellant.
    Submitted February 8, 1978;
    decided March 29, 1978
    APPEARANCES OF COUNSEL
    
      Joseph Jaspan, County Attorney (Natale C. Tedone and Biagio F. Giaquinto of counsel), for appellant.
    
      William J. Steinbrecher for respondents.
   OPINION OF THE COURT

Memorandum.

The judgment appealed from and the order of the Appellate Division brought up for review are affirmed, with costs. The infant plaintiff was eel fishing in Mill Pond Park, along with his older brother. The boys decided to continue fishing in a nearby stream and, in order to reach the stream, they went through a 20-foot-wide culvert under Mill Pond Road. Under an easement granted by the City of New York, the County of Nassau controlled and maintained Mill Pond Road, the culvert involved and all property within the boundaries of the easement. The evidence indicated that these areas were frequently used by children playing there. The boys were fishing near the end of the culvert when the infant plaintiff slipped and fell into the water striking a broken and jagged piece of pipe, sustaining severe injuries to his hand. The broken pipe was located "just outside the culvert” and "not more than six inches away from the opening of the culvert.” The substantive issue raised on this appeal is whether there was evidence to permit a finding of jurisdictional control by the county over the property where the plaintiff was injured. The jury returned a special verdict, unanimously finding that the drainpipe on which plaintiff slipped was located within the boundaries of the county’s easement. This finding as affirmed by the Appellate Division is not subject to review in this court, since there was evidence to support it (Cohen and Karger, Powers of the New York Court of Appeals, § 107, et seq.), despite conflicting testimony of the extent of the easement, which conflict was resolved in favor of respondents. On this record the jury could properly infer that the jagged pipe, there present for a sufficient length of time to be covered with a moss-like substance and being mere inches from the end of the culvert, was on county property; and that the county knew or should have known of its existence and condition; and that finding having been affirmed, we may not disturb it. In addition the county conceded that it constructed and maintained the drainage pipe in the culvert, and made regular inspections. We have examined the other contentions of the appellant and find them without merit.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in memorandum.

Judgment appealed from, etc.  