April 23, 1909.
Jesse Fuller, Jr. [ Frederick W. Sparks with him on the brief], for the appellant.
James D. Bell [ Francis K. Pendleton with him on the brief], for the respondent.
The plaintiff appeals from a judgment dismissing his complaint in an action brought to recover damages to real property in consequence of the alleged negligence and carelessness of the defendant in failing to construct sufficient sewers in Jamaica avenue, and the careless and negligent management and maintenance of those existing, by reason of which the contents of said sewers, together with surface water, flowed upon the plaintiff's property, which was situated on Morris avenue 450 feet south of Jamaica avenue. Morris avenue is an unpaved street, and has no curb or sewers. Jamaica avenue is paved with brick and has a stone curb, but no sewers extending through it. Surface water from the latter avenue, at the point where Morris avenue intersects it, flowed into and through Morris avenue upon the plaintiff's property. The evidence tends to show that this was the natural course of drainage. There was no proof of any discharge of sewage and no satisfactory evidence tending to establish liability on the part of the defendant for the flow of surface water complained of.
In Bastable v. City of Syracuse (8 Hun, 587) and in Byrnes v. City of Cohoes ( 67 N.Y. 204), cited by the appellant and upon which he relies, there was proof that the defendants changed and diverted the course and flow of surface water, collecting it in the street on which plaintiff's property was located, from which it flowed upon the premises, for which wrongful diversion, collection and drainage the defendants were held liable. In the case at bar there is no proof that the surface water ever flowed in any other direction or course than through Jamaica avenue to its lowest point, and thence through Morris avenue or across the land now occupied by that avenue before it was laid out as a street, and it is not shown that the defendant had anything to do with this street or ever exercised any authority over it. There is no proof that the defendant in any manner interfered with or surcharged the natural surface watercourse or volume. In Gravey v. City of New York ( 117 App. Div. 773) the flooding was caused by a break in a sewer. In Noonan v. City of Albany ( 79 N.Y. 470) the surface water and sewage of a large territory was collected and discharged through artificial channels, in a solid body, at a given point, from whence it flowed on plaintiff's land; and in Seifert v. City of Brooklyn ( 101 N.Y. 136) sewers were constructed within an area or district which included plaintiff's property, which were inadequate and insufficient to properly carry off the sewage and water collected in and discharged through them, by reason of which the contents were forced through the manholes and inundated plaintiff's property. The mere statement of these facts is sufficient to establish that the rules declared in the cases cited do not establish the liability of the defendant in the case at bar, in which the facts upon which such decisions are based are wholly lacking.
The judgment must be affirmed, with costs.
WOODWARD, JENKS and GAYNOR, JJ., concurred.
Judgment affirmed, with costs.