43 N.Y.S. 125 | N.Y. App. Div. | 1897
The objection that there was a defect of parties, not having been taken by answer or demur "cr, was waived. (Code Civ. Proc. §§ 488, 498, 499.) Besides, the action was in tort, and plaintiff was at liberty to sue any one of the alleged wrongdoers, if there were more than one, which is by no means clear, under the evidence.
The covenant in the deed from Bradford R. Wood, defendant’s ' testator, under which deed the plaintiff holds her lot, is as follows:'
The defendant’s lot adjoins the alley on the west its-entire length ; the plaintiffs lot adjoins it for 42 feet on the east, and the lots of other owners also, adjoin the alley on the east for 202 feet from the plaintiffs lot to Colonie street. The use of the alley seems to be granted to the plaintiff and to the owners of the other lots adjoining the alley on the east, and the plaintiff ought to keep that part of the alley adjoining her lot so conformed to the level of Colonie street that the defendant’s lot on the west of the entire alley can drain into-’said street if the rest - of the--alley is unobstructed.- We think that it would be unreasonable to hold that she should keep the Whole alley so conformed.' Upon the évidence, we think it was a question of fact whether the injury from the overflow of water was caused by the Omission of the defendant' to take reasonable care of the lot of which lie-was part owner and had sole possession and control.; and, if so, whether the plaintiff, by breach of her covenant or by obstructing the alley, contributed to the injury which she sustained by such overflow.
The judgment.should be reversed and a new trial granted, costs to abide the event. :
All concurred.
Judgment reversed and a new trial granted, costs to abide -the event.
