Frederick v. Town of Theresa

Judgment unanimously affirmed, with costs. Memorandum: In this negligence action plaintiff claims that on October 28, 1975 his potato crop was destroyed by flooding caused by the town’s negligent construction of a temporary sandbag dam and two culverts along Hyde Lake Creek. The town appeals from a judgment entered upon a jury verdict in plaintiff’s favor for the sum of $75,000. The principal issue on appeal concerns the admissibility of a May 16, 1975 letter from the State Department of Environmental Conservation which informed the town that the dam was not a “safe situation or an adequate structure” and that the town should “rectify the undesirable parts of the situation and complete plans for a proper water retaining structure.” If this letter were offered for the truth of the matters asserted therein, it would constitute inadmissible hearsay. In our view, however, the record amply demonstrates that the letter was offered and received on the issue of foreseeability and fit into the theory of the case submitted by the court to the jury. The town failed to request an instruction that the letter be considered solely on the issue of notice, a burden placed upon it as the opposing party (1 Frumer & Biskind, Bender’s New York Evidence, CPLR, § 29.02 [3]; 1 Wigmore, Evidence [Tillers revision], §§ 13,17). Nor did the town except to the charge as it was given. Thus, the court’s failure to give a limiting instruction does not *657constitute error, and this issue has not been preserved for our review (see CPLR 4110-b, 5501, subd [a], par 3). Further, reversal of the judgment is not required in the interests of justice. We have reviewed other issues raised by town and find them to be without merit. (Appeal from judgment of Supreme Court, Jefferson County, Miller, J. — negligence.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.