Smith v. City of Brooklyn — 32 A.D. 257

Majority

p. 257

Walter R. Smith, Respondent, v. The City of Brooklyn, Appellant. (Nos. 1 and 2.)

Headnote

Evidence—hypothetical question as to the source of water in pipes and wells of a water worlcs whose operation destroys a pond.

Where in an action to recover damages alleged to have been sustained by the plaintiff, the.owner of a pond, by reason of its destruction through the operation of the conduits and water works of a municipal corporation, evidence has been introduced showing the facts in relation to water having been drawn into the pipes and wells of the defendant corporation, it is competent to embody such facts in a hypothetical question and ask an expert witness, “Where, in. your opinion, does it come from? ”

Appeal by the defendant, The City of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of. the county' of Queens on the 20th day of October, 1897, upon the verdict of a jury, and also from an ■ order entered in said clerk’s office on the 27th day of October, 1897, denying the defendant’s motion for ,a new trial made upon the minutes.

Almet F. Jenks, for the appellant.

George Wallace, for the respondent.

This case was before this court on appeal from a judgment dismissing the complaint, and is reported in 18 Appellate Division, 340. The unanimous opinion of the court, Mr. Justice Hatch writing, established the liability of the city for any damages sustained by the plaintiff as owner of á certain pond at Freeport, Long Island, which he claimed was destroyed by the operation of the defendant’s conduits and water works. The facts are fully stated in that opinion, and it is unnecessary to repeat them here.

The only question to be considered is the admission, over the defendant’s exception, of an answer to a question addressed to Mr. Smith, a civil engineer and surveyor, whose qualification as an expert clearly appears from the record. Evidence had been introduced tending to show the existence of facts which were embodied

p. 258

in a hypothetical question, and the witness was asked : “ Where, in your opinion, does it come from % ” referring to the water which was drawn into the pipes and wells of the defendant. The question was a proper one under a long series of decisions, as it called. for evidence on a matter of science and skill, which exist in reasons rather than in descriptive facts, and which, therefore, cannot be communicated to others not familiar with the. subject, so as to possess them with a full understanding of the facts. Such was the decision of the Court of Appeals in Van Wycklen v. City of Brooklyn ( 118 N. Y. 424 ), a case over and over again cited, and approved in subsequent decisions.

In addition to this it may be said that the answer, which was, “ The water came from the surrounding soil into the box,” is so absolutely and completely evident on the facts shown in the record, that it was innocuous. No injury could possibly have resulted to the defendant from its admission, even if the question had been improper. The answer did not connect the pond of the .plaintiff, which was nearly half a mile distant, with the immediate percolation into the works of the defendant, and the answer only stated a manifest fact.

The judgment and order must be affirmed, with costs.

All concurred, except Hatch; J., absent.

■ Judgment and order affirmed, with costs.

Cases cited

Van Wycklen v. City of Brooklyn 118 N. Y. 424 N.Y. 1890-02-25 p. 258