Opinion
Argued September 22, 1876
Decided November 14, 1876
Samuel Hand for the appellant. Olin A. Martin for the respondent.
The facts were not in dispute on the trial of this action, and it was a proper case in which to direct a verdict subject to the opinion of the court, but for the exceptions taken during the course of the trial. Where a verdict is taken subject to the opinion of the court, the question to be decided at General Term is, which party is entitled to final judgment on the facts proved at the trial; whereas, upon exceptions, the question ordinarily is whether or not a new trial shall be granted. It is manifest that the two proceedings are inconsistent, and that where exceptions have been taken it is in general erroneous to direct a verdict subject to the opinion of the court. Such a course would deprive the excepting party of the benefit of his exceptions.
But it appears, in this case, that at the close of the trial it was conceded by both parties that there was no dispute about the facts, the amount of damages was agreed upon, and both parties expressly consented that a verdict be directed for the plaintiff subject to the opinion of the court at General Term. This consent necessarily involved an abandonment or waiver of the exceptions which had previously been taken during the trial and amounted, in substance, to an agreement to submit to the court at General Term the question which party should have judgment on the undisputed facts established by the evidence. The exceptions must therefore be disregarded on this appeal.
The facts established at the trial, as stated by the court at General Term and assumed on the argument here, were that the defendant made a gutter and curb in Main street (on which street the plaintiff's lot was situated) and conducted the water of the fourth ward of the city of Cohoes down that street; that the curb and gutter ended opposite plaintiff's lot; that before the curbing was made there was a natural course which took off the water another way; that the curbing brought it to the plaintiff's lot; that the gutter was not complete in front of plaintiff's place; that the water came down Main street and down the gutter and had no outlet and flooded plaintiff's house and did the damage complained of; that the water flowed direct from the gutter on the premises; that a drain could have been built so as to carry off the water, and that a well-hole was afterwards fixed so as to carry off the water.
We are of opinion that on this state of facts the plaintiff was entitled to recover. Diverting the water from its natural course so as to throw it upon the plaintiff's premises, without providing any outlet, and thus injuring his building, was a wrong for which he was entitled to redress. The cases cited on the part of the appellant to the effect that a municipal corporation is not liable for an omission to supply drainage or sewerage, do not apply to a case where the necessity for the drainage or outlet is caused by the act of the corporation itself.
The judgment should be affirmed.
All concur.
Judgment affirmed.