Third Department, July, 1921. [Vol. 197 system, to a point where it would not take care of the surface waters, evidence examined, and held, that there was no evidence which justified a finding of negligence in the construction of the culvert or that there was anything in the experience of the locality, recent or remote, to indicate that the culvert, which superseded an old one, was not entirely adequate for any fall of water that was to be anticipated. While it is true that a person constructing a dam or culvert should construct it in such a manner as to resist such extraordinary floods as may be reasonably expected occasionally to occur, it is a question for the triers of fact to determine whether a flood of an extraordinary character was such that it should have been anticipated and provided against. APPEAL by the claimant, Daniel J. Mead, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 13th day of October, 1920, dismissing the claim of the claimant. Young & Young [W. C. Young of counsel], for the appellant. Charles D. Newton, Attorney-General [Carey D. Davie, Deputy Attorney-General, of counsel], for the respondent. WOODWARD, J.: The claimant is the owner of a field on which he attempted to raise potatoes in the year 1915. It is the claimant's theory that the State of New York, in constructing a culvert under one of its improved highways, maintained under the .patrol system, negligently elevated the bottom of the drain to a point where it would not take care of the surface waters, and that his crop of potatoes was ruined in the year mentioned by reason of the water remaining upon the surface of a considerable part of his field. The learned Court of Claims has made findings of fact and conclusions of law, and dismissed the claim for damages. The claimant appeals. While the claimant insists that the findings are either not supported by evidence, or are made against the weight of evidence, we are unable from an examination of the record to reach a like conclusion. It is, of course, for the claimant to establish his case by evidence calculated to convince the court, and while some of the evidence is of a negative character we find no fact which is not at least a fair inference from the evidence presented to the court. The claimant, for instance, App. Div. 739] Third Department, July, 1921. claims that there is absolutely no evidence to support the finding of fact that the rainfall at the time of the inundation was unusually heavy, but the claimant himself testified on his direct examination, in answer to the question by his counsel, that only once prior to the year 1915 had his crops been destroyed by excessive water by flood, while the record shows that the culvert was erected in 1908, so that there was a period of six or seven years in which there had been no excessive water doing damage by flood, and the inference is justified that where no damages had resulted in that time from excessive water the condition in 1915 might have resulted from an unusually heavy rain; and while it is probably true that a party constructing a dam or culvert should construct it in such a manner as to resist such extraordinary floods as may be reasonably expected occasionally to occur, it is a question for the jury, or the triers of fact, to determine whether a flood of an extraordinary character was such that it should have been anticipated and provided against. (New England Brick Co. v. State of New York, 151 App. Div. 274, 277, and authorities there cited.) Here the evidence is to the effect that there was a rainfall of five and six-tenths inches of water in that vicinity within the period of eight days, which was an unusually heavy rainfall in that neighborhood. The claimant testified that he had been conducting the premises for a period of thirty years, and that only once in that time had there been a flood when the field was planted, and that this was twelve or fourteen years ago, though he was unable to fix the time. How extensive the flood was, whether it was produced by a heavy rain or a blocking of the watercourse in some manner, does not appear; and the explanation of the claimant in his reply brief, unsupported by any testimony in the record to which attention is called, that "we do know that, in the usual rotation of crops, the claimant had this land seeded to grass during these years [from 1908 to 1915] so there were no crops to be destroyed by an overflow," is hardly conclusive upon any issue of fact. There is no evidence in the case which could justify a finding of negligence in the construction of this culvert; no evidence from which a jury would be justified in finding that there was anything in the experience of that locality, recent or remote, to indicate that the culvert, Third Department, July, 1921. [Vol. 197 which superseded an old one, was not entirely adequate for any fall of water which was to be anticipated. The evidence fairly supported the conclusion that the present culvert had at least as great a capacity as the one which preceded it, and the one prior flood is not sufficiently described to warrant any conclusion that it gave any indication of inadequacy in the culvert then existing. The truth is that whatever the real facts may be; whatever counsel for the claimant believes them to be; the record does not disclose them in such a light as to warrant this court in reversing the findings made by the tribunal specially authorized to pass upon the facts. The judgment should be affirmed. Judgment unanimously affirmed, with costs. CHICAGO GREAT WESTERN RAILROAD COMPANY, Appellant, V. THE STATE OF NEW YORK, Respondent. Third Department, July 7, 1921. Taxation stock transfer tax voting trust agreement entered into in 1909 transfer of stock thereunder after amendment of Tax Law, § 270, in 1911 is taxable constitutional law — taxation under said amendment does not involve obligation of contract. Corporate stock, held by trustees under a voting trust agreement executed in 1909 for a period ending in 1914, by the terms of which the trustees were to redeliver the stock to the holders of trustee certificates upon the termination of the contract, is, on the redelivery of the stock, subject to a transfer tax under section 270 of the Tax Law, as amended in 1911, and subsequently re-enacted. Said statute as amended and as construed to apply to contracts entered into theretofore, does not violate the obligations of contracts within the meaning of the inhibition of the United States Constitution. APPEAL by the claimant, Chicago Great Western Railroad Company, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 7th day of April, 1920, dismissing the claim on its merits. App. Div. 742] Stetson, Jennings & Russell [George H. Gardiner, William C. Cannon and Theodore Kiendl, Jr., of counsel], for the appellant. Charles D. Newton, Attorney-General [Edward G. Griffin, Deputy Attorney-General, and George I. Sleicher, of counsel], for the respondent. WOODWARD, J.: The claimant is the successor of the Chicago Great Western Railway Company. In the course of the reorganization, which took place in 1909, a voting trust agreement was entered into for a period ending in 1914, and by the terms of this contract the trustees were to redeliver the stock to the holders of trustee certificates upon the termination of the contract period. When this voting trust was created it is conceded there was no provision of law which called for the payment of a tax upon the transfer of the legal title to the owner of the beneficial right; but in 1911 the Legislature amended section 270 of the Tax Law, and it has been held that this amendment operated to tax a transfer such as was involved in the matter now before us (Tax Law, § 270, added by Laws of 1910, chap. 38, as amd. by Laws of 1911, chap. 352; Laws of 1912, chap. 292, and Laws of 1913, chap. 779; Bonbright & Co. v. State of New York, 165 App. Div. 640), and it is not questioned that this rule would prevail in reference to any contract made subsequent to the enactment of the amendment. It is urged, however, on this appeal, from an adverse decision of the Court of Claims, that the statute should be construed as prospective in its operation, and not involving the case of an agreement such as was entered into in 1909, upon the theory that otherwise the same would involve the obligation of the contract. (See U. S. Const. art. 1, § 10, subd. 1.) The Court of Claims has refused judgment restoring to the appellant the amount of certain stamps used in transferring the certificates of stock to the original owners, and the claimant appeals to this court. There is no doubt that at the time these stamps were used the statute in terms required them to be used and canceled in the transfer of the stock. In other words, the Legislature Third Department, July, 1921. [Vol. 197 had, by an amendment, brought within the scope of an excise tax (People ex rel. Hatch v. Reardon, 184 N. Y. 431) a transfer of stocks which up to that time had not been subject to taxation, and the claimant urges that this operates as a violation of the obligation of the contract between the owners of the stock and the trustees of the voting trust, who have paid the stamp taxes and been reimbursed, under the terms of the contract, for the necessary expenditures. We apprehend that this is a mistaken view of the constitutional provision suggested. "By the obligation of a contract," say the court in Nelson v. St. Martin's Parish (111 U. S. 716, 720), "is meant the means which, at the time of its creation, the law affords for its enforcement;" it is "the law which binds the parties to perform their agreement.'” (Bedford v. Eastern Building & Loan Assn., 181 U. S. 227, 241.) There was no contract on the part of the State that it would not levy a tax upon the transfer of this stock; there was no law entering into the contract between the parties to the voting trust that the tax laws should remain as they were at that time. The levying of an excise tax upon a privilege afforded by the State of New York to its corporations, or those transacting business within the State, did not in any manner interfere with the carrying out of the contract between the owners of the original stock and the voting trustees. This contract has been performed. The claimant agreed to pay any legitimate expenses involved in the transaction, and these taxes have been paid primarily by the trustees in fulfilling their contract, and ultimately by the claimant. Everything has been done and performed, and the claimant is now seeking to recover a sum of money paid out under the letter and the spirit of the statute as amended in 1911 and since re-enacted and in force when the transfer herein was made. The judgment appealed from should be affirmed. Judgment unanimously affirmed, with costs. |