Opinion
March 8, 1950.
Appeal from Supreme Court in Madison County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
The provisions of the judgment alleged to have been violated restrained defendant from so conducting its blasting operations as to project stones, fragments of rock and debris upon the land of the plaintiff. The violations charged were alleged to have occurred during the period of June 23, 1942, to and including May 10, 1948. Voluminous proofs, consisting of the testimony of witnesses, pro and con the charges of violation, were heard and considered by the trial court. The determination that plaintiff failed to establish his contentions by a fair preponderance of evidence may not be said to be against the weight of evidence. The trial court was best enabled to decide whether plaintiff had established the violations with reasonable certainty as to which he had the burden. ( Ketchum v. Edwards, 153 N.Y. 534.) The court properly excluded consideration of evidence of violations subsequent to the institution of the proceeding. Order unanimously affirmed, with $10 costs and disbursements.