Appeal from an order which granted the motion of the respondents to direct the commissioners of appraisal to accept their claim for damages sustained by reason of the taking and diversion of the waters of the Never sink River. Order reversed, without costs, and motion denied. It does not appear that a claim has been filed as required by the provisions of the statute under which this proceeding has been brought. When and if it is filed and rejected, the question presented can be determined on consideration of the notice of the claim, and the relevant facts and circumstances. Nolan, P. J., Wenzel and Ughetta, JJ., concur; Beldock and Kleinfeld, JJ., dissent and vote to affirm, with the following memorandum: We believe the order should be affirmed for the reasons stated *839in our dissenting memorandum in Matter of Huie (Neilson) (6 A D 2d 837), and for the further reasons that (a) the conversation and correspondence between the parties constituted the filing of a claim by respondents, and (b) the city is estopped to challenge the claim on the ground that it was not filed with the commissioners of appraisal (see Teresta v. City of New York, 304 N. Y. 440).