Schwab v. Cleveland

Barnard, P. J.:

. There is considerable conflict of authority as to the necessity of notice and request to remove a nuisance, where the same was created by a previous grantor of the owner sued. The weight of the cases seems to be in favor of notice, but against a request to remove.

(Conhocton Stone R. v. Buffalo, N. Y. and Erie R. R., 51 N. Y., 573.)

This case is not one, however, in which that principle can be invoked. The evidence shows that the defendant’s grantor carried the water from her roof through a pipe into the drain along or very near plaintiff’s premises. It was imperfectly built for it began to leak into plaintiff’s premises soon thereafter. The premises were conveyed to defendant as trustee in 1878, and he has since owned them. During all that time he has failed to protect the plaintiff from this leak. When the owner of premises collects the water which naturally falls upon the same into one place, and conducts it from there by a pipe to his drain, he undertakes, at all hazards, that his pipe shall be both sufficient and shall continue so as to the adjoining owner. It is, therefore, no answer to the plaintiff’s claim, for the defendant to say that he did not know of the leak. He was bound* to do his duty by his own premises. It is the owner who is liable and never the tenant in possession unless the tenant has agreed to keep in repair. (Bellows v. Sackett, 15 Barb., 96.)

The charge of the judge was therefore more favorable to defendant than he was entitled to, in reference to notice. The damages were fully proven to the extent of the verdict. The estimate testified to by the witness did not include the damage beyond the mere repair. The diminution of rent was a legitimate damage. (Jutte v. Hughes, 67 N. Y., 267.) It was a fair, inference that part of the damages may have come.from the urjnal.erected by the defendant. This connected with a pipe some six inches from the plaintiff’s wall. There is no force in the objection, that the defendant cannot be made liable as trustee. He owns as trustee and owes the duty as owner, to keep his pipes and drains from injuring his neighbor by reason of faulty construction or from being suffered to get in bad repair.

Whether as between himself and the beneficiary he can collect the damage from the trust estate is a question not now before us.

Hpon the whole case the judgment should be affirmed, with costs.'

Dykman, J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment and order denying new trial affirmed, with costs.