45 N.Y.S. 473 | N.Y. App. Div. | 1897
This action is to recover damages for the discharge of water and sewage on the plaintiffs’ lands and the destruction of their growing crops. The city constructed a number of sewers in a large tract of territory. The sewers emptied into a larger sewer on New Jersey avenue, which constituted the common outlet of the entire district. This sewer, was not extended to the waters of the bay, but at its termination on the land a pit was excavated and a small drain dug from that pit to the bay to carry off the overflow. At the time of the overflow of the plaintiffs’ lands, there was a very heavy fall of rain, but the sewer commenced to discharge its contents on that land before the fall of rain had become exceptional. The Special Term held the defendant liable for the injury caused to the plaintiffs’ property, and an interlocutory judgment was entered directing a reference to ascertain the amount of the damages. On the report of the referee, a final judgment was entered. From the interlocutory and final judgments this appeal is taken.
, The award of damages seems large when we consider the small tract under cultivation (some six acres), but it appears to be entirely justified by the evidence. The plaintiffs were not restricted to prov-. ing the value of their crops on fivé acres, because the complaint stated that area as the contents of their land. The variance between the contents as stated in the. complaint and the actual contents as shown by the evidence was immaterial. A bill 'of particulars accompanied the complaint and apprised the defendant, in detail,
The interlocutory and final judgments appealed from should be affirmed, with costs.
All concurred.
Interlocutory and final judgments affirmed, with costs.