Murray v. Archer — 5 N.Y.S. 326

Majority

p. 326

Murray et el. v. Archer et al.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

1. Nuisance—Who Liable.

Persons in possession of premises, either as trustees or tenants, are liable for damages caused by such premises being out of repair.

2. Same—Damages.

In an'action for damages to plaintiffs’ premises by water negligently discharged thereon from defendants’ premises, evidence of the rental value of plaintiffs’ premises with and without the discharge of such water thereon is admissible on the question of damages.

Appeal from Rockland county court.

Action by Richard Murray and Johanna Morrissey, for damages to their premises by the unlawful and negligent discharge of water thereon from defendants’ premises, against Allison M., Charles D., and George Archer. Judgment for plaintiffs, and defendants appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Alonzo Wheeler, for appellant Allison M.' Archer. Irving Brown, for appellants Charles D. Archer and George Archer. Wm. McCauley, Jr., for respondents.

The defendants were proper parties. While they had the property as trustees they were in occupation, and receiving the benefit thereof. All are regarded as principals in maintaining a nuisance, and a tenant in possession is liable for damages caused by his premises being out of repair; so that upon both grounds the defendants were liable. We find no errors in the rulings upon the trial or in the charge of the trial judge. To permit proof of the rental value of the plaintiffs’ premises with and without the water shed from the defendants’ yard was one and a proper method to ascertain the damages. That the plaintiff was entitled to at least nominal damages is clear from the fact that defendants’ gutter did discharge water upon plaintiffs’ premises. The case really only involved questions of fact that have been disposed of by the jury. We are unable to say that the damages are excessive from anything that appears in the ease, or from the amount of the verdict. Judgment affirmed, with costs. All concur.