262 A.D. 944 | N.Y. App. Div. | 1941
Judgment modified on the law by reducing the amount of damages to $1,755 and reducing the total amount of the judgment to $1,906.92, and as so modified affirmed, without costs. Memorandum: This action is brought to recover damages alleged to have been caused by the action o'f the defendants in causing storm waters collected in the sewers of the city of Jamestown, N. Y., to be cast upon plaintiff’s property, and restraining the defendants from continuing to cause such waters to discharge over and upon plaintiff’s lands. The plaintiff has been granted an injunction against the city and has also been awarded damages against the city, a portion of the damages being awarded for an overflow in June, 1937, and the remainder of such damages for three overflows in 1938. Upon a motion made for the dismissal of the complaint in this action, we held that in an equitable action for an injunction damages sought as incidental to the injunctive relief might be recovered without previous presentation to the common council of a Written claim therefor. (Bush v. City of Jamestown, 259 App. Div. 976.)
Charter City of Jamestown, § 33 (Laws of 1923, chap. 665, as amd. by Jamestown Local Laws of 1938, Local Law No. 8).