Benzion Karfiol, Respondent, v. The City of New York, Appellant

Benzion Karfiol, Respondent, v. The City of New York, Appellant. Second Department, April 26, 1907. Negligence — municipal corporations — injury to property "by inadequate sewer — when evidence of plaintiffs title received, on appeal. In an action for damages to property caused by the inadequacy of sewers, the municipality is liable" although the connections between the sewers and the plaintiffs premises were defective by reason of the absence of check valves. ■ When the plaintiffs proof of ownership of the premises is not clear, the appellate court may consider a warranty deed, produced on argument, showing his title when no" objection is made to its reception and there is no suggestion made that it can be controverted. . Appeal by the defendant, The City of New York, from a judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk, of the county of Kings on the 5th day of December, 1905, upon the decision of the court, rendered after a trial at the Kings County Trial Term without a jury. ■James I). Bell [John J. Delany with him on the brief], for the appellant., ' Willia/m F. McNamara and E. J. McCrossin, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: The evidence- in this case supports the finding of the learned trial justice that the property in question has been damaged during the ' period óf six years prior to the commencement of the action by reason of the. inadequacy of the sewers maintained by the defendant to carry off the waters occasioned by ordinary storms. The damages awarded are not excessive. The plaintiff’s proof of ownership of the premises, however, was-not very -clear". On .the argument of the appeal the plaintiff produced and put in evidence a full covenant warranty deed - of the premises affected, recorded in the year 1896, conveying the premises -to him. No objection was made tp the reception of the deed, nor was any suggestion made that the record could be answered or changed. The record furnishes additional evidence, if such additional evidence is necessary in order to sustain the judgment. (See Dunford v. Weaver, 84 N. Y. 445; Day v. Town of New Lots, 107 id. 148; Dunham v. Townshend, 118 id. 281.) The point raised by the appellant, that the injury was occasioned by tlie faulty connection between the plaintiff’s premises and the sewer and by the absence of proper check valves to prevent the backing of water from the sewers, is disposed of by the decision of this court in the case of McCallister v. City of New York (115 App. Div. 882), where a similar question was raised and necessarily decided adversely to the appellant’s contention. The judgment should be affirmed. ' - • Woodward, Jenks, Hooker and Gaynor, JJ., concurred. Judgment affirmed, with costs.