Opinion
December 15, 1936.
Action for damages for maintaining a nuisance adjacent to plaintiffs' property as a consequence of defendant's filling in its property with ashes and garbage and causing quantitites of water to wash down on plaintiffs' premises; and causing odors, soot and smoke to reach plaintiffs' premises; likewise causing them to be infested with rats. Judgment for the plaintiffs for $504 for the period up to the beginning of this action reversed on the law and the facts and a new trial granted, costs to abide the event. The filling-in operation engaged in by the defendant was not an unlawful act, even though it resulted in the grade of its lands becoming higher than that of the plaintiffs' land, since that filling-in operation has not resulted in the creation of a defined watercourse or an alteration in an existing one although it causes surface waters to flow onto plaintiff's land. ( Bennett v. Cupina, 253 N.Y. 436. ) This element is the chief one reflected in the assessment of damages. It may be the other elements of nuisance justify merely nominal damages, but plaintiffs should be afforded an opportunity, if they be so advised, to endeavor to prove that such other elements justify substantial damages, as to which we express no opinion. Lazansky, P.J., Hagarty, Carswell, Davis and Taylor, JJ., concur.