
    JOHN D. MAIRS, et al., Assignees, &c., Respondents, v. THE MANHATTAN REAL ESTATE ASSOCIATION, Appellant.
    
      Public streets.—Liability of one removing sidewalks, curb, &c., for injury to property in adjacent premises.—Damages.
    
    One who removes the sidewalk, curb and gutter from a public street, —e. g., in making excavation for building,—is bound to supply as good a conduit for surface water as he takes away, and failing so to do, is liable to the owners of adjacent premises for injuries to property therein, resulting from such omission. This, though the removal of the curb and gutter be made with the permission of the municipal authorities, and though measures (which pi'ove ineffectual) be taken with the acquiescence of the owners of such adjacent premises, to prevent such injuries.
    The removal of the sidewalk, curb and gutter amounts to a nuisance* ' The measure of damages in such case, is the actual loss in the property injured and the expenses incurred by such damage, with interest.
    Before Speir and Russell, JJ.
    
      Decided December 20, 1880.
    Appeal by defendant from a judgment in favor of plaintiffs, entered upon a verdict of a jury in May, 1878, for $7,525.
    The action was brought by the plaintiffs’ assignors, F. S. Weeks & Co., for damages to their stock of goods, consisting of paper-hangings, occasioned by the flooding of their cellar, in consequence of the alleged fault of the defendants, in July and August, 1873.
    Since the action was begun, F. S. Weeks & Co. have become bankrupts, and the present plaintiffs have been substituted it their stead.*
    F. S. Weeks & Co., in July and August, 1873, were the occupants of the building 107 Duane St., in this city. The defendants were, and are the owners of the premises 109 Duane St., next door west of 107. The ■declivity of the street is to the west, so that surface water runs from the east to the west: Water running in the gutter would ordinarily run by the premises of Weeks & Co., and then by the premises of the defendant.
    In the summer of 1873, the defendants began the construction of a large building upon their premises. They not only excavated the earth upon their premises for the purposes of a cellar and sub-cellar, but took away the sidewalk, curb and gutter, and excavated the ground for the purpose of building vaults under the sidewalks. Upon taking away the sidewalk, curb and gutter, they built a dam at the- upper point intended to prevent the water from running into their excavation, by turning it across the street and compelling it to run down the gutter on the other side. The removal ■of the curb and gutter was done with the permission of the municipal authorities. The dam was erected by the acquiescence of the plaintiffs’ assignors.
    On the night of July 27, 1873, there was a heavy storm of rain, so that the dam erected by the defendants gave way, a large quantity of water ran into their excavation, where the sidewalk had been, and then, by percolation or otherwise, as is claimed, into the plaintiffs’ cellar, in which were stored large quantities of paper-hangings, which were injured. Sub- ■ st'antially the same thing occurred again on August 29, in the game year.
    The plaintiff’s building was not erected upon the line of their lot, and there was a space between their westerly wall and the wall of the defendant’s building, which at that time had nearly reached the level of the street. In front, on the street line, the defendant’s wall was quite even with the street level. There were holes in the foundation walls of the plaintiff’s building, left there when, the building was shored" up on some former occasion.
    The evidence all tended to show1 that the water which ran into plaintiffs’ premises came down the gutter and ran first into the defendant’s excavation where the sidewalk had been, then into plaintiffs’ premises, because the dam theretofore erected had broken away.
    The judge who presided at the trial, substantially charged the jury that as to the damages which occured in July, the defendants were liable, and that the only question to be submitted to them was as to the amount of damages, and left to the jury the question as to whether the injury which occurred in August, was occasioned in the same way as that in July.
    
      James Emott, and William P. Dixon, for appellants.
    ' Eugene L. BusTie, attorney, W. Howard Wait, of counsel, for respondent.
   By the Court.—Horace Russell, J.

The theory of the learned judge who presided at the trial seems to have been that inasmuch as the defendants removed the sidewalk, curb and gutter—the natural conduit by which surface waters were carried off—they were bound to protect the plaintiffs’ assignors in some other way against such surface waters, and failing to do so, were liable for any damages resulting from their act. There is abundant authority for that proposition (Dygert v. Schenck, 23 Wend. 446; Jutte v. Hughes, 67 N. Y. 267; Farrand v. Marshall, 21 Barb 409; Congreve v. Morgan, 18 N. Y. 84; Prixley v. Clark, 35 Id. 520; Hay v. Cohoes Co., 2 Id. 159; Bellows v. Sackett, 15 Barb. 102; Thomas v. Kenyon, 1 Daly, 132 ; Adams v. Walker, 84 Conn. 466).

The removal of the sidewalk, curb and gutter, amounted to a nuisance, and the. defendants were liable to any one injured thereby (Irvine v. Wood, 4 Robt. 138; Irvin v. Fowler, 5 Id. 482). It made no difference whether or not the plaintiffs’ assignors acquiesced in the building of the dam. It was the defendant’ s business to provide a dam which should be as effective, so far as this purpose was concerned, as the curb and gutter had theretofore been.

The defendant’s counsel on the argument urged that inasmuch as the city authorities had given the defendants] a permit to remove the sidewalk, curb and gutter, they were not liable in this action.

Such permit only protected the defendants from prosecution for the infringement of corporation ordinances, or possibly an action by the city. It could not give the defendants greater power than the city would itself have ; and had the city removed the curb and gutter, and the same damage resulted therefrom to the plaintiffs, it would have been liable (Shearman & Redfield on Negligence, § 385, note; Lewenthal v. Mayor, 61 Barb. 511; Wallace v. New York, 2 Hilt. 440; Donahoe v. Mayor, 3 Daly, 65 ; Lacour v. Mayor, 3 Duer, 406; Barton v. City of Syracuse, 36 N. Y. 54; Storrs v. City of Utica, 17 Id. 107 ; Creed v. Hartman, 29 Id. 591). There is little, if any, difference in principle between the responsibility of the defendants to foot passengers by reason of their removal of the sidewalk, and their liability to plaintiffs’ assignors, by reason of the removal of the curb and gutter—a public easement in which they had a right (Walsh v. Mead, 8 Hun, 387; Shipley v. Fifty Associates, 101 Mass. 261).

Various requests to charge were presented to the judge, substantially asking him to charge that if the water got upon the plaintiffs’ premises in some other way, as by a defect on their own sidewalk, the defendants were not liable. He declined so to charge.

There was no evidence that the plaintiffs’ sidewalk was defective, and a judge is not required to charge propositions not based upon evidence. This same observation applies to the other requests touching the. manner in which the damage occurred. It was quite apparent that the water got into the plaintiffs’ assignors’ premises from the defendant’s, and into the defendant’s through the excavation of the earth where the sidewalk had been, and in consequence of the removal of the curb and gutter.

The requests to charge that if the plaintiffs’ building was in bad condition, and in consequence thereof the injury occurred, the defendants were not liable,, was properly refused.

The request to charge that the defendants were not liable if only by unusual caution on their part the damage could have been prevented, was also properly refused.

They were bound to supply to the plaintiffs as good a conduit as they took away, or failing to do that, were responsible in damages for whatever injury resulted.

On the question of damages, the judge instructed the jury that the plaintiffs could recover only their actual damage by loss in the value of their paper injured, and their expenses occasioned by such damages, with interest. •

In a case like this, interest as interest may not be allowed, but interest as damages may be. The extent of the injury to the'goods, and the expenses incurred, were an ascertained sum within a short period after the damage occurred (Sedgwick on Damages, p. 386 ; Greer v. Mayor, 3 Robt. 406 ; Parrott v. Knickerbocker Ice Co., 46 N. Y. 361).

I see therefore no reason to interfere with the judgment.

The judgment should be affirmed, with costs.

Speie, J., concurred.  