Meruk v. City of New York
| Decision Date | 23 April 1918 |
| Parties | MERUK et al. v. CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by William Meruk and another against the City of New York. From a judgment of the Appellate Division (163 N. Y. Supp. 1123) affirming a judgment on directed verdict for plaintiffs, the defendant appeals. Modified and affirmed.
Wm. P. Burr, Corp. Counsel, of New York City (Wm. B. Carswell, of New York City, of counsel), for appellant.
Benjamin Reass, of Brooklyn, for respondents.
[1] This action was brought to recover damages to real property evidenced and measured by loss of rents during the period January 19, 1911, to September 30, 1914, resulting from the repeated flooding of such premises by the overflow from a sewer alleged to have been improperly and negligently constructed by the defendant. While a verdict in plaintiffs' behalf was directed by the court for damages as claimed, this was done upon a motion made by each side for a directed verdict, and therefore the action of the trial court, if sustained by evidence, is conclusive upon us in respect of any questions of fact. It is not disputed upon this argument that there was evidence tending to sustain the plaintiffs' claim that a certain sewer was of negligent and improper construction wherefrom resulted the overflow of plaintiffs' premises and the loss of rents, and therefore we are not called upon to consider those questions.
The claims which defendant does make, impugning the correctness of the judgment rendered against it, are: First, that no sufficient notice of claim was filed by the plaintiffs as required by defendant's charter; and, second, that part of the claim for which recovery has been allowed was barred by the statute of limitations contained in the charter.
The provisions of the charter upon which these assertions are based are found in section 261, which, as amended by chapter 452 of the Laws of 1912, provides that:
‘In the case of claims against said city, accruing after the passage of this act, for damages for injuries to real or personal property, * * * alleged to have been sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by, said city, * * * no action thereon shall be maintained against said city unless such action shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time when and place where the damages were incurred or sustained, together with a verified statement showing in detail the property alleged to have been damaged or destroyed, and the value thereof, shall have been filed with the comptroller, of said city within six months after such cause of action shall have accrued.’
The amendment made by said act of 1912 consisted in making said section applicable to claims for damages for injuries to real property which theretofore had not been included.
[2] The introductory question presented by defendant's contentions is the one whether this action is one in negligence or for the maintenance of a nuisance, because the application of said section is limited to actions of that character. We think that it is such an action notwithstanding plaintiffs' claim to the contrary and insistence that it is one of trespass. Without attempting to decide whether plaintiffs might have maintained an action in the nature of trespass for the over-flow of their lands by sewage from defendant's sewer, it is sufficient to say that by their notice of claim, by the allegations of their complaint, and by their evidence upon the trial they have specifically and distinctly alleged negligence upon the part of the appellant and have sustained such allegations by proof of improper construction of the sewer. They have thus adopted the ordinary form of action employed in such cases, although their situation would not be changed, if they had alleged nuisance instead of negligence. Smith v. Mayor, etc., of N. Y., 66 N. Y. 295, 23 Am. Rep. 53;Seifert v. City of Brooklyn, 101 N. Y. 136, 142,4 N. E. 321, 54 Am. Rep. 664; Duryea v. Mayor, etc., of N. Y., 26 Hun (N. Y.) 120, 122. Concluding, therefore, that plaintiffs' action is one of the class specified in and governed by the section which has been quoted, we reach the...
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