(dissenting). The claim against the State alleges as stated in the majority opinion that the plan of flood control was in itself faulty, defective and negligent in that it involved an unnecessary risk of damage to the claimant’s property and facilities. I cannot agree that the State is an innocent bystander which owes no duty or responsibility for damage arising from following out defective and faulty plans involving a forseeable and unnecessary risk to claimant’s property. It would seem that approval and acquiescence in the plan on the part of the State is implicit in the statute authorizing the State to participate in the project (L. 1936, ch. 862 and amendments thereto). The State appropriated lands and gave *132possession to the Federal Government for the express purpose of constructing the project in accordance with the plan. It can hardly claim lack of knowledge or nonacquiescence in the plan. The State has been held liable for damages resulting from a faulty flood control project occurring after the project was completed- (Allen v. State of New York, 208 Misc. 385, affd. 2 A D 2d 644). If a defective plan is the proximate cause of the damage, it would seem unimportant whether the damage occurred during the progress of construction or after the construction was completed. The State was at all times the owner of the lands and owed a duty not to interfere with or change the natural channel of the stream so as to cause damage to other riparian owners. The difficulty here is that the record does not clearly show whether the damage in question is due to a defective plan or to the negligence of the contractor, or both. The claim should, in my judgment, be sent back for a new trial where all of the material facts can be fully developed.
I therefore dissent in part and vote for reversal and a new trial.
All concur, McCurn, P. J., concurs in the reversal but votes for granting a new trial, in a separate opinion. Present — McCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.
Judgment reversed on the law and facts, without costs of this appeal to either party, and claim dismissed. Certain findings of fact disapproved and reversed and new findings made.