
    Mary E. Bedell, Respondent, v. Village of Sea Cliff, Appellant.
    
      Municipal corporation —- liability of, for collecting surface water and discharging it upon private property.
    
    , A municipal corporation may gradé or change the grade of a street whenever it deems it to be necessary, and property owners have no ground of complaint, even though the consequences be that surface water is thrown upon their land or is prevented from flowing therefrom; yet no right exists to collect a material body of water by diverting it from its natural flow or by other means to gather it together, and when thus collected to conduct it by any artificial channel and discharge it in a body upon private property.
    A property owner upon whose premises water so diverted has been discharged in. considerable volume, making gullies in the land, tearing away piazza posts and flooding a stable, may maintain an action against the municipality for the damage thus sustained.
    Appeal by the defendant, the Village of Sea Cliff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of October, 1896, upon the verdict of a jury,' and also from an order entered in said clerk’s office on the 4th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Rougier Thorne and Townsend Scudder, for the appellant.
    
      George B. Stoddart, for the respondent.
   Goodrich, P. J.:

The plaintiff in 1892 became the owner of certain premises on the north side of Seventh avenue in the village of Sea Cliff, upon which she erected a dwelling house. Her lot and the adjacent streets are ■ on a hillside which slopes from Seventh’ avenue, northward to Parkway, and from Summit avenue westward toward Central avenue. This slope indicates what was originally the natural course of surface water.

Previously to plaintiff’s purchase, Summit avenue was laid out from Eighth avenue to Parkway, but was not cut through from Seventh avenue to Parkway; and the surface water, or most of it, which came into Summit avenue from the southward, and from. Seventh avenue from the eastward, was diverted from its natural flow and discharged upon the plaintiff’s premises through that portion of Summit avenue which lay between Seventh avenue and Parkway.

The village authorities rounded up the roadway of Summit ave■nue, down to Seventh avenue, and made gutters or ditches, con- • structing the same in such manner as 'to gather the surface water into Summit avenue as a channel, diverting it from its passage through the lower part of Summit avenue, and sending it down Seventh avenue until it poured in considerable volume over.the plaintiff’s premises, making gullies therein, tearing away piazza posts and flowing her stable.

This statement of facts is to be derived from the verdict of .the jury, to which, upon conflicting testimony, the court submitted the question whether the village had negligently, unskillfully or in ten- ■ tionally done the work, so as to divert the flow of water from its natural course across Seventh avenue into the fields or the woods, and turn it around into Seventh avenue^ and thus cast it- upon the property of the plaintiff.” This question is by their verdict found in favor of the plaintiff.

This court, in the cases of Anchor Brewing Co. v. Dobbs Ferry (84 Hun, 274), McCarthy v. Village of Far Rockaway (3 App. Div. 379), and Carll v. Village of Northport (11 id. 120), held that, while a municipal corporation may grade or change the grade of its streets whenever it deems it necessary, and property owners have no ground of complaint, even though the consequence be that surface water is thrown upon their land, or is prevented from flowing therefrom, yet no right exists to collect a material body of water •by diverting it from its natural flow, or by' other means to gather it ■ together, and when thus collected, to conduct it by any artificial channel and discharge it in a body upon private property.

The appellant’s. counsel relies- upon the case of Lynch v. The Mayor (76 N. Y. 62), and other cases, in support of the doctrine that the village was under no obligation to construct drains to carry off the surface water, and thus prevent its flowing upon plaintiff’s premises; and that the duty of draining the streets is judicial in its nature, and for a failure to exercise this power, or an erroneous‘esti-mate of the public need, no civil action is maintainable. This is undoubtedly tlie law, but the Court of Appeals in that case affirmed a judgment in favor of the municipal corporation on the ground that there was no allegation that the defendant, by the work complained of, had diverted any stream of water upon the plaintiff’s lot, or that it collected water into a channel and threw it upon such lot, or caused any more water to flow njion such lot than would have flowed there if the avenue had not been raised. This does not conflict with the principle enunciated by this department, because the allegation of the plaintiff is that the defendant willfully and negligently constructed the roads in such manner and condition that the water and sewage from the roads and streets flowed upon the plaintiff’s property, which we construe to be an allegation of damage occasioned in the manner and within the principle of the case cited.

We think, therefore, that the judgment should be affirmed.

All concurred, except Bartlett, J., not voting.

J udgment and order affirmed, with costs.  