102 N.Y.S. 145 | N.Y. App. Div. | 1907
The defendant appeals from a judgment against it in an action for damages to personal property from the overflow of the defendant’s sewer. A jury was waived and the court found that for' a period of two years previous to the 13th day of November, 1903, and five or six times every year, during storms the sewers maintained by the defendant were insufficient to cony off the large quantities of waters and refuse that had been collected by the defendant throughout said sewer district and emptied into said lateral and main sewers, causing said sewers to become choked so as to flood the streets, and casting upon plaintiff’s premises the water, refuse and sewage matter gathered by the defendant; and that for a period of two years previous to said 13th day of November, 1903, and during and after every large storm throughout said district, and in the immediate vicinity of plaintiff’s said premises, through the negligence of the defendant, the refuse, sewage matter and water collected by the defendant and emptied into its main and lateral sewers caused said sewers to back up and throw their contents out upon the streets and into.adjacent houses and stores, flooding the cellars and basements thereof, and notwithstanding these conditions the defendant negligently and carelessly failed to remedy said conditions; and as a conclusion of law, that by reason of .the acts aforesaid defendant was guilty of negligence, and was, and now is, liable in damages for the losses sustained by the plaintiff during said period of two years previous to the 13th day of November, 1903. This case does not show that the damages were due to the conditions and consequences found by the learned court, and which are the basis of its
The judgment is- reversed and a new trial is granted, costs to abide the event.
Rich and Miller, JJ., concurred; Hirsohberg, P. J., concurred • in result; Woodward, J., dissented.
Judgment reversed and new trial granted, costs to abide the event.