Opinion
Argued October 16, 1951
Decided December 7, 1951
Appeal from the Supreme Court, Appellate Division, Fourth Department, LOUNSBERRY, P.J.
John P. Gualtieri and G. Edward La Gatta for appellants.
Nathaniel L. Goldstein, Attorney-General ( Henry S. Manley and Wendell P. Brown of counsel), for respondent.
Judgment affirmed, without costs; no opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE and FULD, JJ. FROESSEL, J., dissents in the following memorandum: I dissent and vote for reversal for the reasons stated in the dissenting opinion below ( 277 App. Div. 647, 654). Moreover, the evidence is uncontradicted that the natural flow of water was substantially increased by waters continuously diverted into the Delta Reservoir during July, August and through September 15, 1945, through the artificial Forestport feeder created and controlled by the State.