William J. Connolly, Respondent, v. The City of New York, Appellant

William J. Connolly, Respondent, v. The City of New York, Appellant. Second Department, October 17, 1906. Negligence — pollution of waters by defective sewer — when riparian owner entitled to damage. A person who rents lands with a water front and erects bath houses which he rents to the public, is entitled to recover damages from a municipality which negligently allows an iron pipe conducting sewage and maintained by it to become rusty and leak so that the waters are contaminated and unfit for bathing. Appeal by the defendant, The City of Hew 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 20th day of May, 1905, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 25th day of May, 1905, denying the defendant’s motion for a new trial made upon the minutes. Patrick P. Callahan [James D. Bell and John J. Delany with him on the brief], for the appellant. John W. Magee, for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: The plaintiff recovered a verdict against the defendant in the sum of $3,000 on account of defendant’s alleged negligence in maintaining a sewer pipe, which ran out under a pier some 700 feet into the bay fronting land which the plaintiff had rented. The plaintiff leased this property from the riparian owner, together with the water front.' The sewer had been laid some years before the plaintiff went into possession, and seemed to have rusted out, it being an iron pipe; and practically all of the time of plaintiff’s lease, after the first year, it leaked sewage -to such an extent that the water, especially at low tide, and part of the time at high tide, was contaminated, with the result that bathers did not continue to frequent the water. When the plaintiff went into possession he erected buildings, bath houses, pavilions and the like, to cater to the public and to invite them to his. premises for the purpose of bathing in the- waters which washed his shore. The measure of damages adopted by the court is the one approved in Reisert v. City of New York (174 N. Y. 196), and in my opinion the sum awarded was reasonable. The defendant insists that the plaintiff had no rights in the water.. Of course, he did not own the Waters, but he had a lease of the premises across • which parties desiring to bathe there .must come, and he erected and possessed the bath houses which they must use for the purpose of bathing. ■ He owned the bathing suits that he rented, and his profit, of course, was made from renting these bathing "suits and bath houses. But, under fámiliar principles, the plaintiff was entitled to have the waters come to him- without unreasonable pollution. It was a fair, question of fact, and so presented to the jury, whether or not the defendant was negligent in polluting those waters by allowing the sewage to escape from a defective pipe. They have • found that the pollution was unreasonable and accomplished through the negligence of the defendant, and the damages naturally flow. Hence, I recommend that the judgment and order appealed from be affirmed, with costs. Present—-Woodward, Jbnks, Hooker and Rich, JJ. Judgment and order unanimously affirmed, with costs.