Opinion
December 29, 1917.
Joseph M. Gazzam, for the plaintiffs.
George A. Green [ Lamar Hardy, Corporation Counsel, and Thomas F. Magner with him on the brief], for the defendant.
Present — JENKS, P.J., THOMAS, STAPLETON, RICH and BLACKMAR, JJ.
In a suit to restrain the maintenance of a sewer system it appeared that it had been determined in an earlier action at law between the same parties that as regards the plaintiffs' property, and to the substantial damage thereof, the system was illegally constructed or maintained. The status so established by judgment continuing authorized the plaintiffs to seek its abatement in a suit in equity, which would, indeed, have been in the first instance a proper remedy. In such suit the damages caused by the overflow of the sewers at several times into plaintiffs' property are incidental to the main relief, and it was not necessary for the purposes of the injunctive relief or the recovery of such damages to present to defendant claims or notice of intention to sue, or to commence the action pursuant to section 261 of the Greater New York charter, as amended by chapter 452 of the Laws of 1912. ( Sammons v. City of Gloversville, 175 N.Y. 346; Lamay v. City of Fulton, 109 App. Div. 424; Penfield v. City of New York, 115 id. 502; Ahrens v. City of Rochester, 97 id. 480; Flaxman v. City of New York, 178 id. 935.) It is also considered that the plaintiffs were damaged by the overflow on January 7, 1915, but the ascertainment thereof should be remitted to the trial court, also the claims for damages at earlier periods may be examined. It is suggested that there should be a judgment for an injunction with suspension thereof for a time deemed necessary for the completion of the new sewer system. ( Sammons v. City of Gloversville, 175 N.Y. 346.)
The judgment so far as it awards plaintiffs damages for the overflow of August 4, 1915, is affirmed. The plaintiffs should have the costs of this appeal.
Judgment so far as it awards damages to plaintiffs for the overflow of August 4, 1915, unanimously affirmed, with costs of this appeal to plaintiffs.