(concurring.) If we correctly understand the decisions of the court of appeals, (107 N. Y. 310, 14 N. E. Rep. 269; 132 N. Y. 293, 30 N. E. Rep. 841,) the turning point of this case is this: Have defendants, by their race way, materially and perceptibly diminished the natural flow of the waters of Maatewan creek from their natural channel in front of plaintiff’s two lots, or either of them? We understand that it has also been decided by that court that this question was for the jury. The learned trial judge so held, and refused to direct a verdict for the plaintiff, even for nominal damages. This question was broadly and fairly submitted to the jury, and the verdict was for the defendant.
It follows that the judgment should be affirmed, with costs.