89 N.Y. 498, Mairs v. Manhattan Real Estate Association
| Citation | 89 N.Y. 498 |
| Docket Number | . |
| Date | 10 October 1882 |
| Parties | JOHN D. MAIRS et al., as Assignees, etc., Respondents, v. THE MANHATTAN REAL ESTATE ASSOCIATION, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Page 498
Argued Apr. 27, 1882.
Page 499
COUNSEL
Wheeler H. Peckham for appellant. Unless defendants were guilty of some neglect or some invasion of their neighbor's property, they are not responsible for any consequences to him of their acts. (Hays v. The Cohoes Co., 2 Comst. 159; Auburn Plank-road Co. v. Douglass, 9 N.Y. 444; La Sala v. Holbrook, 4 Paige, 169.)
W. Howard Wait for respondents. The defendants were trespassers, and as such are liable for the consequences of their acts irrespective of any precautions they may have taken to prevent the water from flowing into their own or their neighbor's premises, or of the condition or location of the premises trespassed upon. (Bailey v. Mayor, 2 Denio, 433.) It makes no difference that the work was lawful and the manner of conducting it workmanlike. (Adams v. Walker, 34 Conn. 466; Hay v. Cohoes Co., 2 N.Y. 159; St. Peter v. Denison, 58 Id. 416.)
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Nor that the damage arose directly from the wrongful act or interference of a third party. (Congreve v. Morgan, 8 N.Y. 84; Prixley v. Clark, 35 Id. 520; Bellows v. Sacket, 45 Barb. 102; Thomas v. Kenyon, 1 Daly, 132; Jutte v. Hughes, 67 N.Y. 267; Vanderwiele v. Taylor, 65 Id. 341; Dygett v. Schanck, 23 Wend. 466; Chase v. N.Y. C. R. R. Co., 24 Barb. 273.)Whether or not defendants had a permit from the city, giving them permission to construct vaults under their sidewalk was wholly immaterial. (Lewenthal v. Mayor, etc., of New York, 61 Barb. 511; Donahue v. Mayor, etc., of New York, 3 Daly, 65; Lacour v. Mayor, etc., of New York, 3 Duer, 406; Barton v. City of Syracuse, 36 N.Y. 54; Storrs v. City of Utica, 17 Id. 107; Creed v. Hartman, 29 Id. 591; Brant v. City of Albany, 5 Hun, 591; Byrnes v. City of Cohoes, 67 N.Y. 402; Irwin v. Wood, 51 Id. 224.) The charge "and you must, if necessary to give the plaintiffs compensation to the present time, add interest to the amount of the loss" was correct. (2 Parsons on Contracts [ed. of 1860], 382; Sedgwick on Damages, 385; Green v. The Mayor, 3 Robt. 406; Walrath v. Redfield, 18 N.Y. 457; Parrott v. Knickerbocker Ice Co., 46 Id. 361.) The new matters set up in the answer do not fall within the definition of a counter-claim under section 149 of the Code. (McKenzie v. Farrell et al., 4 Bosw. 192; Drake v. Cockroft, 4 E. D. Smith, 34; Bernheimer v. Willes, 11 Hun, 16; Isham v. Davidson, 52 N.Y. 237; Jordon v. Nat. Shoe & Leather Bk., 74 Id. 467.)
OPINION
RAPALLO, J.
The most important points in this case are those which arise upon the rulings of the judge at the trial, that the defendants were liable for the damages caused by the flooding on the 27th of July, 1873, and that they were also liable for the damage on the 29th of August, if it arose from the same cause as that in July, and his refusal to submit to the jury any questions as to the liability of the defendants, except those relating to the amount of damages.
As the complaint was originally framed, the injury was alleged to have been caused by the excavation by the defendants
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of their own lot for the purpose of laying the foundation and constructing the cellar of a building they were about constructing, and negligently and wrongfully permitting large quantities of water to collect upon the excavated part of their own premises, adjoining the store of Weeks & Co., and to remain there until they penetrated through the ground, into, and upon, the premises of Weeks & Co., and flooded the same, and damaged the goods in their basement.
Before the trial, the plaintiffs, by leave of the court, amended their complaint by inserting an averment that the defendants did also, wrongfully and negligently, interrupt the flow of water, which, in times of rain and storm, passed in the gutter and street fronting the premises occupied by said firm of Weeks & Co., and the premises of the defendants, and divert it therefrom, so that it flowed upon, and into, the premises occupied by said firm, and into their vault, etc., and into their sub-cellar, where were stored large quantities of merchandise.
The evidence upon the trial showed that, in July, 1873, the firm of Weeks & Co. (the plaintiff's assignors) occupied a store fronting on the northerly side of Duane street, in the city of New York. The store had a cellar, and also a sub-cellar, under the main building, and also a vault under the sidewalk, in front, but the floor of the vault was level with that of the cellar, and its walls and foundations were not as deep as those of the sub-cellar. The defendants were engaged in erecting a large building on the westerly side of the store, and had excavated and laid foundations for that purpose to the same depth as those of the sub-cellar of the store, and had extended their vault under the sidewalk to the same depth. In so doing, they had taken up the sidewalk, and the curb and gutter, and excavated a space in the street, extending about two feet outside the line of the curb, but the excavation in front of this wall had not been filled in, and there was thus left an open space in the street of eighteen inches, or two feet, in width, along, and in front of, the front wall of the defendant's vault. There was, also, a space of some inches on Weeks & Co.'s lot, between the easterly wall of defendants' building and vault, and
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the westerly wall of the store and vault of Weeks & Co., it appearing that in building the store the builder had omitted to cover the entire lot; and, also, that the westerly wall was out of plumb, and inclined toward the east. This open space communicated with the excavation in the street in front of the wall of defendants' vault. The defendants had excavated this space between the lots, close up to the wall of the vault of Weeks & Co. Water falling into the excavation which the defendants had made in the street would naturally find its way into the space between the walls. The grade of Duane street descended from east to west, so that when the premises were in their ordinary condition, surface water flowed westwardly through the gutter in front of the store of Weeks & Co., and passed off through the gutter in front of defendants' lots, but the removal of the curb and gutter in front of defendants' lots would naturally throw the surface water into the excavation made by the defendants, to their injury, as well as to that of Weeks & Co.; and to prevent this, the defendants had constructed a dam, extending from the sidewalk, in front of the store of Weeks & Co., near the excavation, to the centre of the street, the effect of which was to turn the water across the street and let it flow through the gutter on the opposite side.
On the night of the 27th of July, 1873, during a heavy rain, the dam broke away, or was in some manner injured, so that it let the water into the excavation which the defendants had made in the street in front of the front wall of their vault. Thence it found its way under the...
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