Lena Garrett, Appellant, v. Bradford R. Wood, Respondent

Lena Garrett, Appellant, v. Bradford R. Wood, Respondent. A defect, of parties— waitied if not set up by answer m' demurrer— wrongdoers are ’severally liable — construction of - a covenant relative to Iceeping cm alley unobstructed. An objection that there is a defect'of parties, if not taken by answer or demurrer, is waived. . . Where an action sounds in tort, the plaintiff is at liberty to sue any one of. the alleged wrongdoers, if there is more than one. The owner oí a lot on the lower and east side of an alley holding under a deed which recites that the alley “is for the mutual benefit of the lots bordering thereon,” and which binds the grantee, his heirs and assigns, to. keep the alley so conformed to the level of a street running at right angles with it that the lots on the west side of the alley can drain through it into that street, is not required to keep the whole alley thus conformed to the level of the street, but-only that part of the alley which adjoins her lot. Appeal by the plaintiff, Lena Garrett, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 9th day of December, 1895, upon the dismissal of her complaint, directed by the court after a trial at a Trial Term of said court. The complaint alleged that the defendant maintained a nuisance upon his premises adjoining those of the defendant, namely, a pond of water formed by surface drainage from which the water overflowed and ran upon the lands of plaintiff, casting filth and water upon her lot and into the basement and lower rooms of her house and buildings. The answer denied that the defendant was the sole owner of the premises, and alleged that the same were owned by the heirs at law of his late father, of whose will he was sole acting executor, but without giving the names of such co-owners, and alleged that the defendant’s custody of the premises was as such executor, and denied maintaining any nuisance. Upon the close of the plaintiff’s case the court directed a. nonsuit upon the ground that the other owners of the defendant’s lot were not made parties. Other facts are stated in the opinion. Barnwell Rhett Heyward, for the appellant. P. E. Dubois, for the respondent. [MAJORITY — LANDON, J.:] LANDON, J.: The objection that there was a defect of parties, not having been taken by answer or demur "cr, was waived. (Code Civ. Proc. §§ 488, 498, 499.) Besides, the action was in tort, and plaintiff was at liberty to sue any one of the alleged wrongdoers, if there were more than one, which is by no means clear, under the evidence. The covenant in the deed from Bradford R. Wood, defendant’s ' testator, under which deed the plaintiff holds her lot, is as follows:' “ The alleyway eight feet in the' rear of the above-described premises; which-is to:be-giveñ by the-saidWood', to be. for the mutual benefit of the lots bordering thereon, said Judge agreeing for himself, his heirs and assigns, to keep the said alley so conformed -to the level of Colonie street that the lots on the west side of said alleyway can ■drain into and through the same to Colonie street.” The defendant’s lot adjoins the alley on the west its-entire length ; the plaintiffs lot adjoins it for 42 feet on the east, and the lots of other owners also, adjoin the alley on the east for 202 feet from the plaintiffs lot to Colonie street. The use of the alley seems to be granted to the plaintiff and to the owners of the other lots adjoining the alley on the east, and the plaintiff ought to keep that part of the alley adjoining her lot so conformed to the level of Colonie street that the defendant’s lot on the west of the entire alley can drain into-’said street if the rest - of the--alley is unobstructed.- We think that it would be unreasonable to hold that she should keep the Whole alley so conformed.' Upon the évidence, we think it was a question of fact whether the injury from the overflow of water was caused by the Omission of the defendant' to take reasonable care of the lot of which lie-was part owner and had sole possession and control.; and, if so, whether the plaintiff, by breach of her covenant or by obstructing the alley, contributed to the injury which she sustained by such overflow. The judgment.should be reversed and a new trial granted, costs to abide the event. : All concurred. Judgment reversed and a new trial granted, costs to abide -the event.