
    Ellen E. Weed, App’lt, v. Boltus M. Brush, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Trespass — Damage—Jury viewing premises.
    Failure of plaintiff, in an action for trespass, to give evidence from which the jury can estimate the amount of damage, is cured by allowing the jury to view the premises.
    Appeal from a judgment in favor of defendant.
    
      Garrett Z. Sneder, for app’lt; Arthur S. Tompkins, for resp’t.
   Dykman, J.

— This action was commenced in a court of a justice of the peace in Rockland county, to recover damages for injuries alleged to have been occasioned to the real property of the plaintiff by the flow of refuse matter from the soda-water factory of the defendant, upon the plaintiff’s land. On the trial before the justice of the peace a judgment was rendered in favor of the plaintiff for the sum of $75 damages. An appeal from that judgment was taken by the defendant to the county court, and, by reason of the disqualification of the county judge, the appeal was removed to-the supreme court, and, by stipulation, was argued before a justice of this court, who reversed the judgment of the justice, and a judgment was entered in favor of the defendant, against the plaintiff, for the sum of $41.88. From that judgment the plaintiff has appealed to this court.

The action was for the recovery of damages for trespass upon land, and the plainitff charged that the defendant caused materials used in the manufactnre of sarsaparilla and mineral waters to escape upon her land, and also that he threw and placed around her land bottles and other refuse material, also large quantities of ground marble dust, vitriol, and other chemical substances. The complaint then charged that by means of such wrongs her land was overflowed and depreciated, and a well of water upon the premises was destroyed. The answer was, in substance, a general denial. There was evidence upon the trial to prove the fact stated in the complaint. The water flowed from a cesspool, and washed over the plaintiffs yard, and the marble dust and refuse matter was washed over her premises, sometimes every day. Glass was thrown upon her land, and there was some proof of injury to the water in the well. In any view, there was sufficient proof to justify a verdict in favor of the plaintiff. The defendant substantially admitted the overflow, but belittled the quantity, and its effects upon the land and the water in the well. The record states that at the close of the trial, “at the request of both plaintiff and defendant, and with their consent in open court, the court permitted the jury, under the charge of the constable and attendants, to personally view the premises in question, with instructions not to converse with any person, or among themselves, until the case had been submitted to them. The jury returned in about fifteen minutes, and the counsel then summed up for the respective parties.” The jury rendered a verdict in favor of the plaintiff, against the defendant, for $75 damages. The question involved in this appeal has relation to the damages, and, as'we have already said, the plaintiff was entitled to a verdict for something, and therefore the sole question is one of amount. The obstacle in the way of the defendant is the stipulation to permit the jury to visit the premises. By that permission, the jury could take ocular proof of the injury to the land. The eyes of the jurors, and perhaps their taste of the water, were permitted to testify, and their testimony is not submitted to us. We think it must be assumed that there was sufficient evidence presented to the jury and obtained from a view of the premises to justify the verdict. The case is like an appeal from a report of commissioners appointed to appraise the damages for the appropriation of private property for public use. In such cases appellate tribunals refuse to interfere with the report, upon mere questions of amount, unless the awards are so excessive or insufficient as to be palpably unjust. That rule is applicable here. We can easily see that the premises of the plaintiff must have been seriously injured, and, if the testimony of the witnesses did not fix the basis or lay a foundation for the verdict, that defect was supplied by the view of the jury. The consent to such a view must be construed into a permission for the jury to act upon what the jurors saw, and, if they discovered sufficient evidence of injury to the premises of the plaintiff to satisfy them that she had sustained damages to the amount of $75, that constituted a sufficient basis for their verdict. The testimony respecting, the injury to the crops by the marble dust which was washed from a cesspool was competent, and its reception presents no error. The judgment from which the appeal is taken should be reversed, and the judgment rendered by the court of the justice of the peace should be affirmed, with costs to the plaintiff in all the courts.  