Judgment affirmed, with costs. All concur, except Cunningham, J., who dissents and votes for reversal on the law and for granting a new trial, in the following memorandum: The defendant having elected to construct a culvert to carry away the surface water which accumulated upon its lands was charged with the duty of keeping such culvert in repair and free from obstructions. (Mitchell v. N. Y., L. E. & W. R. R. Co., 36 Hun, 177; Branson v. N. Y. C. & H. R. R. R. Co., Ill App. Div. 737.) (The judgment is for defendant in an action for property damage caused by flooding of farm land.) Present — Crosby, Lewis, Cunningham, Taylor and Dowling, JJ.