Opinion
January, 1905.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.
The plaintiff complained that the defendant, a contractor with the city for regulating and repaving a city street, piled up paving material on the sidewalk in front of plaintiff's premises and over his bake oven, built in a vault under the sidewalk, so negligently as to break and depress the flat stones, and that he was damaged by the consequent flow of rain water through the breaks or depressions into his bake oven. The parties litigated at great length the question whether the act complained of was negligent, for the right of the defendant to pile up paving stones at this place, under the circumstances, was not disputed. But in view of the plaintiff's version it seems to me that the determination of that question does not dispose of the controversy. The testimony of the plaintiff, though vague and somewhat incoherent if not inconsistent, is clear enough that the damage was not consequent upon the mere downfall of the rain, but upon a flow of rain water from the street onto the sidewalk, and thence through the sidewalk onto his premises. The plaintiff and his witnesses attribute this to the absence of a curb, or the disturbance thereof or the defective work thereon. There is no question but that the defendant in his work incidentally disturbed the curb, or temporarily removed and reset it. Although counsel for the respondent now lays his main stress upon the acts of the defendant in relation to the curb, the parties during the trial seem to have lost sight of the fact that in view of the plaintiff's version of the origin of the damaging water it was necessary to establish the defendant's negligence in relation to the curbstones, for there is not sufficient proof that the damage was not caused by the direct rainfall alone. The learned counsel for the appellant contends that the plaintiff did not establish a license to construct the vault. But the colloquy between the court and both counsel as to the issues, followed by the concession as to the permit, read in evidence, and the ruling of the court restricting the proof without demur of counsel, probably precludes the appellant from raising this point upon the present appeal, and in view of our disposition of this appeal further consideration of this feature is unnecessary. There should be a new trial ordered, costs to abide the event. Hirschberg, P.J., Bartlett, Woodward and Hooker, JJ., concurred.