
    Adelaide Carey, Appellant, v. James H. Smith and Mary E. T. Smith, Respondents.
    
      Appeal — when a reversal will be granted upon the facts.
    
    The rule is well settled that, to justify the appellate court in reversing the decision of a trial court or referee upon the facts, it is not sufficient that the .appellate court, if it. had acted in the case in the first instance, would have reached another conclusion, hut it must affirmatively appear that the decision of the trial court or referee on the question of fact was clearly erroneous.
    
      Appeal by the plaintiff, Adelaide Carey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 11th day of December, 1895, upon the report of a referee.
    
      George Putnam Smith, for the appellant.
    
      Michael J. Tierney, for the respondents.
   Cullen, J.:

The plaintiff entered into a contract with the defendants whereby the defendants were to convey to her a house and lot in New Rochelle for the sum of $4,500, $250 of which the plaintiff paid on the execution of the contract, and the remainder whereof she agreed to pay on the delivery of the deed. The plaintiff was given possession of the premises prior to the time prescribed for passing the title. After occupying the house for some ten days the cellar was flooded from the sewer; thereupon the plaintiff removed from the premises. She claimed to rescind the contract, on the ground that the contract was induced by fraudulent representations as to the condition of the cellar, and brought this action to recover the amount paid by her in advance and her expenses in the examination of the title. The referee found in favor of the defendants that they did not falsely represent the condition of the cellar of the dwelling house.

The rule is settled that to justify the appellate court in reversing the decision of a trial court or a referee on the facts, it is not sufficient that the appellate court, if it had acted in the case in the first instance, would have reached another conclusion, but it must affirmatively appear that the decision of the trial court or referee on the question of fact was clearly erroneous. Judged by even this strict test we are of opinion that the report of the referee should not be sustained. The fraudulent representation alleged to have been made by the defendants as an inducement for the contract was that the cellar of the dwelling house was dry and that there had been no complaint made of its condition by any tenant. As we constare the answer of the defendants the making of the representation is not denied, but only its falsity. Apart, however, from the question of the pleadings, we think that this representation was substantially made, and also that it was false. The negotiations between the parties were carried on between tlie husband of the plaintiff and the defendant Janies II. Smith. It is conceded that these two parties discussed the condition of the cellar, and that the plaintiff’s husband made inquiry as to its being dry and called attention to marks or patches indicating dampness. He testified that he said to the defendant James II. Smith that his boy had been sick and that he was particularly anxious to have a house with a dry cellar; that that defendant answered that the cellar ivas positively dry; that other people had lived in the house and had children there and that he had never heard any complaints from it; that thereupon plaintiff’s husband called attention to two spots on the foundation or cellar flooring and said that they looked as if the cellar was damp; that the defendant answered that that was caused by the cement being placed in different patches, and one drying before the other. The testimony of the defendant James IT. Smith is that the plaintiff’s husband asked him about the cellar, “ and I told him it was dry, as far as I jknew about it; that I had lived in the house five months myself,, and had rented it every year after that; that I saw nothing that would lead me to believe that it was damp, or that I had had no complaints from my tenants about its dampness. I told Mr. Carey that. * * * I did not say that the cellar was positively dry, oidy as far as I knew about the cellar.” Wo think the probabilities are in favor of the truth of the story told by the plaintiff’s husband; as it is undisputed that the dryness of the cellar was a subject of inquiry by him, it seems hardly probable, especially after noticing the susjncious water marks, that he would be satisfied with anything less than the positive statement as to the condition of the cellar. But even taking the defendant’s narrative of the conversation, we think the statements made by him were not in accordance with the facts. It was shown by the evidence of a tenant and his wife, who had been in occupation of the house shortly before the time of the execution of the contract, that there had been several occasions on which the cellar was flooded from one cause or another. It was established by the plumbers who did the work that on these occasions the water had been pumped out at the expense of the defendants and not at that of the tenant. The defendant James IT. Smith testifies that he had no knowledge of the presence of water in the cellar except on one occasion. The tenant, however, sent notice to the defendants of tlie fact, and though there was no direct evidence that such notice reached the defendants, still it appears that, after sending notice, the defendants’ plumbers came to the premises and pumped the water-out. It further appears that the location and grade of the cellar are such that there is a liability, when the tide is high, that the water may be forced back through the sewer and the house connection into the cellar, and this is what actually occurred when the plaintiff removed from the premises. To .guard against this danger, the defendants had put a gate in the house connection, which it was believed would prevent the backward flow of water. The fact of the use of this appliance would tend to indicate knowledge on the part of the defendants of the liability of the cellar to floods. Taking the whole evidence, we think it clear that the defendants must have known, at the time of the negotiations for the sale of the house to the plaintiff, that the cellar had been at times flooded, and that there still existed liability of a recurrence of the evil.

The judgment appealed from should be reversed on the questions of fact and law, and a new trial granted before another referee to be appointed at Special Term, costs to abide the event.

All concurred.

Judgment reversed upon the facts and upon the law, and new trial granted before another referee to be appointed at Special Term, with costs to abide the event.  