
    Third Department,
    March, 1942.
    (March 4, 1942.)
    Otis S. Rhynders, Appellant, v. State of New York, Respondent. Oliver E. Rider, Appellant, v. State of New York, Respondent.
    (Claim No. 25497.) (Claim No. 25496.)
    Bliss, Heffernan and Foster, JJ., concur; Hill, P. J., dissents, in an opinion, in which Crapser, J., concurs.
   Hill, P. J.

(dissenting). The Court of Claims has disallowed the claims in ohese two proceedings. Each claimant is the owner of property in the village of Red Hook, N. Y., which was flooded and damaged in or about April, 1939. It is asserted that the flooding was due to the negligent acts of officials and employees of the State of New York in constructing a fifteen-inch storm sewer which drained an improved highway so that it would empty into a manhole catch basin about ten feet deep and four feet square, at the bottom of which there was an eight-inch drain, through which water ran from claimants’ premises. In the center of the manhole a “ T ” extended up from the eight-inch drain for about two and a half feet. The Court of Claims has found claimant Rhynders suffered a loss of $1,398.96 and claimant Rider $1,085.40. There is a finding in the decision in each case that a low-lying area consisting of about five acres of which claimants’ lands are a part, was flooded in 1939 to a depth of about six feet at the center. The finding that there was a break in the eight-inch tile one hundred and fifty feet from the outlet which stopped the flow and caused the flood, is against the weight of evidence, if in fact there is any evidence to support it. There were heavy rains in March and April, 1939, which drained from the highway through the State’s drain into the catch basin. The eight-inch privately owned tile was not large enough to accommodate, and was not intended to accommodate, the additional volume of waters The result was that the water backed up and prevented surface water from being drained from the lands. The eight-inch drain was not publicly owned; there is no proof as to who did own it. It had been laid by the owners of the land it drained. It had been in use many years. The State was a trespasser. Substantially all of the evidence relating to a broken tile at the end of the eight-inch drain is given by three State witnesses, who testified to an examination of the premises in .October, 1937. Another witness sought to attribute the flood to the torrential ¡rain of September, 1938, six months before the damage is claimed.

The State is liable. (Mundy v. New York, Lake Erie & W. Railroad Co., 75 Hun, 479; VanDuzer v. Elmira, C. & N. R. R. Co., Id. 487; affd., 152 N. Y. 634; Howard v. City of Buffalo, 211 id. 241; Mendelson v. State, 218 App. Div. 210.) [177 Misc. 168.]  