dissents, in the following Memorandum, and votes to reverse the judgment and dismiss the claim: The State of Hew York installed the enlvert under Emite D in 1928 and there is no evidence in this record that it was changed as to type, dimensions or elevation from that time until the date of the alleged drainage accident on March 5, 1956. Aside from installing a new top on the catch basin, the record discloses that some unknown person attached a pipe to the easterly end of the culvert, presumably on the State’s right of way, at about the time the claimant sold some of its property to one Hoertz. Apparently the pipe was the beginning of a drainage line over this property and onto the property of the claimant where it connected with a pipeline of the claimant which had been constructed for drainage of its property. It is academic that the combined drainage from both lines increased the flow but the record discloses no increase in the amount of drainage through the culvert of the State. It is quite apparent from this record that the damage occurred as a result of the action of Hoertz and the claimant and. that the only possible charge against the State was that it acquiesced in having the pipe connected to the culvert. The State had no control over the underground system of pipe drainage and the fact that its engineers gave advice and counsel to the claimant with reference to its drainage system, under the circumstances herein, was no admission of liability. It would be difficult to establish any degree of negligence against the State but assuming the record permits such inference, the act of the claimant in allowing the underground hookup of additional drainage into its pipes on its property constituted contributory negligence and would be sufficient to bar a recovery. The record herein is based almost entirely on surmise, speculation and conjecture and in many instances does not support the findings of fact made below. I would reverse the judgment and dismiss the claim.