The opinion of the court was delivered by: GALSTON
This is an action brought by the owners of abutting houses and lots to recover damages for alleged negligent flooding of their premises, and for an injunction to restrain the defendant from maintaining the conditions which are alleged to have created the flooding.
According to the allegations of the complaint, the plaintiffs are owner of property located on 80th Street, near Caldwell Avenue, in Elmhurst, Borough of Queens, City of New York. The defendant, The Great Atlantic and Pacific Tea Co., Inc. (referred to hereinafter as the A & P), some time in 1950, it is alleged, contemplated the erection of a retail store and parking lot on a vacant parcel of land contiguous to the premises owned by the plaintiff, Novsam. This parcel is located on the corner of 80th Street and Caldwell Avenue, and extends to 81st Street. Eight separate causes of action are set forth. They may be summarized as follows:
(1) that the defendant entered into a contract with an architect for the preparation of plans for the construction of the retail store and parking lot, which plans were defective in that they failed to provide for the erection of an adequate retaining wall for the preservation of the plaintiffs' rights to a lateral support;
(2) that the plans failed to provide for proper drainage facilities on the premises occupied and controlled by the defendant, by reason of which the defendant 'has cast, is casting and will continue to cast water from the property on which its store and parking lot are located on to the land of the plaintiffs';
(3) that the plans contemplated the raising of the level of the defendant's land to such an extent that a valley was created on the plaintiffs' lands;
(4) that the plans violated the City and State laws, ordinances and regulations pertaining to excavation and construction;
(5) that the architect selected by the defendant for the preparation of the required plans was not competent and was engaged by the defendant with knowledge of his incompetency;
(6) that the defendant selected the contractors for the construction of the store and parking lot knowing that said contractors were not competent;
(7) that the defendant, by reason of the aforesaid construction, interrupted the natural drainage of water over the plaintiffs' lands, although knowing the plaintiffs had a right to such natural drainage by way of an easement; and
(8) that by reason of the aforesaid defective plans and the construction of the store and parking lot pursuant thereto, the defendant had created and is maintaining a nuisance.
The defendant, A & P, by answer, entered in effect a general denial. Subsequently it filed a third-party complaint against Samuel J. Lefrak, as the owner of the premises and building in question and the person alleged as responsible for the planning and construction of the building.
After a jury had been duly empaneled and sworn, the attorneys for the respective parties entered into a stipulation agreeing to waive the jury and to have the cause tried by the Court, without findings of fact or conclusions of law.
During the course of the trial, the motion of the plaintiff, Novsam, to withdraw as a party was granted, with prejudice. On motion of A & P, the defendant and third-party plaintiff, the third-party complaint was amended so as to include Beachport Homes, Inc., as a third-party defendant. The answer to the third-party complaint was also amended, on motion, so as to allege ownership, possession and control of the premises involved in Beachport Homes, Inc., rather than in Lefrak.
The plaintiffs failed to present any evidence of any right to lateral support or any violation of such right by the defendant. Nor was there any evidence adduced by plaintiffs that the plans 'contemplated the raising of the level of the defendant's land to such an extent that a valley was created on plaintiffs' lands,' nor that 'defendant did create such a valley,' as alleged in their complaint. Moreover, the plaintiffs submitted no evidence to show that the defendant engaged or selected, or was responsible for the engagement or selection of either the architect or the contractors responsible for the plans and construction of the building in question. So too, the plaintiffs submitted no proof of the existence of an easement ...