Kossoff v. Rathgeb-Walsh, Inc.

In an action by a lower lot owner to recover damages because of seepage of surface water which flowed from the property of the higher lot owner, the appeal is from a judgment entered on the dismissal of the complaint at the close of the case. Judgment affirmed, with costs. (Bennett v. Cupina, 253 N. Y. 436.) Wenzel, Beldoek, Ughetta and Kleinfeld, JJ., concur; Nolan, P. J., dissents and votes to reverse the judgment and to grant a new trial, with the following memorandum: The evidence was sufficient to present a question of fact as to whether or not the natural flow of the surface water from the higher ground adjacent to appellant’s property had been diverted by grading and paving and by the erection of structures thereon to appellant’s damage. (Cf. Jutte v. Hughes, 67 N. Y. 267; Tremblay v. Harmony Mills, 171 N. Y. 598.) Bennett v. Cupina (253 N. Y. 436) involved the right of a lower owner to divert from his land surface water flowing from the higher ground by filling and grading his land for the purpose of improving his property.