PRIME ET AL.
CITY OF YONKERS.
Appeal from Special Term, Westchester County.
Action by Ralph E. and Alanson J. Prime against the City of Yonkers. From a judgment for plaintiffs, defendant appeals. Affirmed.
[115 N.Y.S. 307] John F. Brennan, for appellant.
Henry Bacon (Ralph Earl Prime, Jr., on the brief), for respondents.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, RICH, and MILLER, JJ.
The plaintiffs' judgment was reversed by the Court of Appeals. 192 N.Y. 105, 84 N.E. 571.The defendant now appeals from plaintiffs' judgment on the new trial then ordered. The action is in equity to enjoin a continuing nuisance and trespass, to restrain unlawful acts which affect plaintiffs' premises, and to recover incidental damages. The judgment is for $9,000 damages to the plaintiffs' premises. The parties by stipulation read in the testimony of the first trial and gave new testimony. The Special Term has made findings like unto those found on the first trial, but supplemented by additional findings upon the new testimony.
The plaintiffs own realty in the city of Yonkers, acquired in 1891 and improved before May, 1892, along the northerly side of the Nepperhan river. This river flows through the city, east to west, into the Hudson river. Several dams had been built along the Nepperhan river. In 1891 there was a dam of many years' standing, below these premises, that ponded and slackened the waters above the premises. In 1860 the then village laid out and built a street, called Warburton avenue, which was continued as a solid causeway through and across the pond, so as to leave the larger part of the pond to the east of that causeway. Two openings of 20 feet each were made in the causeway to permit the flow of water from the east to the west side of the street. These openings were not at right angles to the street and its causeway, but conformed to the natural course of the stream through the pond. In 1878 the defendant closed both openings, and substituted a pipe 3 feet in diameter at the southerly end of the causeway, fitted with a gate, and at the northerly end an opening 40 feet wide at right angles to the street and its causeway, and consequently at an angle with the natural course of the stream. In this construction a part of an abutment of an old 20-foot opening was left extending diagonally for 28 feet across the new 40-foot opening. This abutment had been taken down only to the level of the water or the bottom of the pond as it then existed. In 1892 the pond became a nuisance from the filth and refuse therein, and the board of health of the city of Yonkers removed the dams, including the dam below. Thereupon the character of the river changed from a sluggish and quiet stream to a swift and rapid one. It washed away the sediment of the pond, and then wore away the bed of the river. In consequence, the remains of this old abutment became exposed, and, as the learned Chief Judge, in the opinion of the Court of Appeals, described it, " it acted as a funnel," increasing the velocity, flow, and force of the stream against the premises of the plaintiffs, so as to injure them.
The learned Chief Judge, writing for the court, held that under the circumstances of the case the two facts alone, that the city in reconstructing the causeway left the old abutment in the waterway, and [115 N.Y.S. 308] that the abutment caused the damage, were insufficient to the liability upon the city, for the reason that the defendant could only be charged with liability for these consequential damages by reason of negligence in the construction, and yet there was no finding of fact upon negligence, " the vital element of the case." It was further held that although the duty upon the defendant to provide reasonable waterways for the flow of the stream was continuous, and might well require the city to change inadequate waterways when it was necessary in view of changed conditions, yet the only measure of that duty was reasonable care. The Chief Judge then pointed out that it was not contended that so long as the pond remained the old abutment affected the flow, that it was the act of a third party (the board of health, for which the defendant was not responsible) in removing the dams which made that abutment a cause of injury, and yet there was no finding that the defendant was negligent in improper maintenance of the waterway after the destruction of the dam below. And the learned Chief Judge also pointed out:
" It cannot be said as a matter of law that in 1878 the defendant was bound to foresee the probability of the dam being removed and the sediment in the pond being carried away, nor can it be said as a matter of law that after the destruction of the dam the defendant was bound to know that the old abutment was causing injuries to the plaintiffs' property when the latter were themselves ignorant of the fact until 1896, and neither then nor later made any complaint thereof to the defendant. These were questions of fact for the determination of the trial court."
The Special Term has found that the reconstructed waterway under Warburton avenue as originally constructed was inadequate and insufficient to accommodate and safely provide for the flow of the waters of the Nepperhan river by reason of the leaving thereon of the southerly abutment of said old waterway standing diagonally across the same-
" and that such inadequate, unskillful, and insufficient construction after the removal of the same aforesaid and the change thereby caused in the force, direction, and volume of the flow of said river from the easterly to the westerly side of the embankment of Warburton avenue, and the consequent washing out of the deposit upon the bottom of said pond, became dangerous and actively destructive of the support of the buildings of the plaintiffs on the westerly side of said stream, and that the said city of Yonkers did not thereafter exercise diligence and care in maintaining said waterway and keeping the same in proper and save condition, and after due notice given to the said city and its officers negligently and carelessly permitted the said dangerous condition to continue and to increase, and, although duly notified, negligently and carelessly and improperly neglected to remove the abutment of said old south waterway where the same crossed and obstructed the new waterway, and caused the waters flowing therein to be confined in a narrow channel and thrown against the westerly bank and foundation of the plaintiffs' buildings with great force and to their great damage and destruction, and that in so doing the said city of Yonkers was guilty of negligence in maintaining the waterway in an improper manner, and in not altering, changing, and removing obstructions therein after the necessity for alterations and change and removal had become known to the said city and its officers, and they had become chargeable with knowledge and notice thereof, and that as the result of such original, improper, and unskillful construction and plan, and of such wrongful and negligent maintenance thereof, the property of the plaintiffs was damaged and injured by the waters of said stream to the extent and in the manner herein found."
[115 N.Y.S. 309] It has found that the consequent damages to plaintiffs' premises were $9,000, and it has concluded that the defendant was guilty of negligence in the premises. The question is whether these findings and this conclusion are justified by the evidence, and whether the judgment is sustained by the law of this case as declared by the Court of Appeals. Before we can reverse upon the facts, it must appear that the findings were against the weight of evidence, or that the proofs so clearly preponderated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusions. Lowery v. Erskine, 113 N.Y. 52, 20 N.E. 588; Foster v. Bookwalter, 152 N.Y. 168, 46 N.E. 299; Marden v. Dorthy (No. 1) 12 A.D. 176, 42 N.Y.Supp. 834.I think that the evidence is sufficient to sustain the findings and that the conclusion of law follows therefrom. The plaintiffs' expert Southard, who went exhaustively into the question of construction, the effect of leaving the old abutment upon reconstruction, and the effect thereof after the dams had been taken away, testified finally that it was not a safe and skillful construction to leave the old abutment in the new 40-foot opening, with reference to the protection of the bank after the dams were destroyed. His testimony was the sole expert testimony offered in the case.
The learned counsel for the appellant contends that his testimony, when read throughout, does not support the plaintiffs', and attention is called to his testimony upon cross-examination as follows:
" Without the transverse masonry work, leaving the transverse masonry work all out, that construction of a 40-foot waterway, running as indicated, would not be faulty construction with that out as long as the dam remained there. Whether it would be faulty construction work after the ...