
    William H. Miles, Jr., and Alfred S. Miles, Composing the Firm of Miles Brothers & Co., Appellants, v. The City of Brooklyn, Respondent.
    
      Negligence—flooding of property abutting on a city street after the raising of the street grade and the construction of a catch basin— when the city’s liability is for the jury.
    
    In an action brought against a city to recover damages for the flooding of the plaintiff's factory, it appeared that prior to the construction of a catch basin by the defendant in a street near the plaintiff’s property, in 1894 and the coincident raising of the street grade, no water had ever made its way from the street upon the plaintiff’s premises, but that immediately thereafter, in April, 1894 overflows from the catch basin began to occur; that such water repeatedly invaded the cellar of the plaintiff’s factory and spoiled a quantity of goods.
    
      Held, that the question of the defendant’s liability was one of fact for the jury, and that it was improper for the court to dismiss the plaintiff’s complaint.
    Appeal by the plaintiffs, William H. Miles, Jr., and another, composing the firm of Miles Brothers & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      O. N. Brown [I. R. Oeland and Stephen M. Hoye with him on the brief], for the appellants.
    
      James D. Bell [R. B. Greenwood and John J. Delany with him on the brief], for the respondent.
   Willard Bartlett, J.:

The plaintiffs in this action sought to recover damages against the city of Brooklyn on account of the flooding of their factory property caused by the alleged improper construction of the defendant’s sewers and the improper grading of the streets in the neighborhood of the factory. By the allegations of the complaint they attempted to bring the case within the doctrine of Seifert v. City of Brooklyn (101 N. Y. 136), and although the proof did not establish all those allegations, I think it went far enough to entitle the plaintiffs to go to the jury.

There was evidence to the effect that prior to the construction of a catch basin by the defendant in a street near the plaintiffs’ property in 1894, and the coincident raising of the street grade, no water had ever made its way „from the street onto the plaintiffs’ premises, but that immediately afterward, in April of that year, overflows from the catch basin began to occur. The water would be “just boiling * * * out of the catch basin, as one would see a boiling spring.” It repeatedly invaded the cellar of the plaintiffs’ factory, on one occasion to the depth of two feet, and spoiled many goods. I cannot see why this evidence did not make out a prim,a facie case for the consideration of the jury. Where the direct effect of a sewer or drain is to collect an increased body of water and precipitate it upon adjoining property to its injury, the municipality is liable for such consequences. (2 Dillon Mun. Corp. [3d ed.], § 1051; cited with approval in Seifert v. City of Brooklyn, supra.) While it is true that a city may change the grade of its streets without incurring any liability to an adjoining owner merely because the change throws surface water upon such owner’s lot in a different way and even in larger quantities than it flowed before, the municipality may not lawfully collect the surface water into a channel and throw it upon the land of an abutter. (Lynch v. Mayor, 76 N. Y. 60, 63.) The same proposition must hold equally good as to the collection of the surface water of a street into a catch basin and the simultaneous elevation of the street grade so as to cause the contents of the catch basin to flood the plaintiff’s property. The testimony to which I have referred goes to show that the injuries complained of in the case at bar were due to these causes, for which the defendant was responsible; and if so, it was error to dismiss the complaint. I, therefore, advise a reversal of this judgment.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  