Camden v. City of New York — 119 A.D. 84

Majority

p. 84

John Camden and Henry Camden, Appellants, v. The City of New York, Respondent.

Second Department,

April 26, 1907.

Headnote

Evidence — when map inadmissible to show measurements.

In an action to recover damages-fór the cutting off of subterranean waters from the plaintiffs’ premises when the defendant claims that the premises were too ' remote'to be affected, a'map made under the directions of defendant’s engineer ' is not admissible when there is no evidence to show that the distances indicated thereon are correct.

Appeal by the plaintiffs, John Camden and another, from a judgment-of the Supreme Court in-favor of the defendant, entered in

p. 85

the office of the clerk of the county of Queens on the 1st day of December, 1904, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 1st day of December, 1904, denying the plaintiffs’ motion for a new trial made upon the minutes.

Charles Coleman Miller, for the appellants.

James D. Bell [James W. Covert and William E ■ Ellison with him on the brief], for the respondent.

This case comes to this court on a bill of exceptions. The action is to recóver damages resulting from the absorption of the subsurface waters on the plaintiffs’ premises, due to the operation of a pumping plant' by the defendant. The defendant claimed that the plaintiffs’ premises Were located too far from its station to be affected, and to show this was permitted to put in evidence a map made pursuant to the direction of its engineer. There was no evidence to show that the distances indicated" by the map were correct. Said engineer testified that the survey was made under his direction ; that he sent .out a party, who took the measurements and made the map ; that he was familiar with the country, and that the map was correct. The respondent contends that there is a presumption that the measurements were correctly made and accurately indicated by the map, but the cases cited in support of the contention have no application to the question here; the map had no more probative force than the unverified statement of the men who prepared it, and its admission in evidence was error, requiring a reversal of the judgment. ‘ "

Hirsohberg-, P. J., Woodward, Jenks and Rich, JJ., ccncurred.

Judgment and order reversed and new trial granted, costs to abide the event.