
    Augusta Groening, Respondent, v. Peter Wolff, Appellant.
    
      Nuisance — maintenance of toilets — injury to foundations.
    
    Appeal by the defendant, Peter Wolff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June, 1908, upon the decision of the court rendered after a trial at the Kings County Special Term.
   Woodward, J. :

This action was brought to restrain the defendant from maintaining certain toilets alleged to constitute a nuisance, in that the percolating sewage entered the plaintiff’s cellar through the walls, making her premises unsanitary and destroying her foundations. The premises owned and occupied by the parties are adjacent, and the toilets are contained in that part of the defendant’s premises immediately adjoining the plaintiff's wall. The trial resulted in a judgment restraining the defendant from maintaining the toilets, and upon this appeal the principal point urged is that the judmentis against the weight of evidence. We have examined the record, but fail to discover merit in the defendant’s contention. The evidence is such that it would be difficult to come to any other conclusion than that reached by the learned court. There is no question as to the location of the toilets, and the evidence precludes the idea that the damages unquestionably sustained by the plaintiff result from any other cause than that alleged in the complaint and supported by the testimony. Equally without merit is the contention that the defendant did not have notice of the nuisance, and an opportunity to abate it. The matter was called to his attention at various times, but appears to have been met with the same contentions which were made on the trial, to the effect that the defendant was not causing the nuisance, and now that the case has been tried upon that theory, and the defendant is shown to have been the cause of the plaintiff’s injury, there is no ground for holding that there was any lack of proper notice. The judgment appealed from should be affirmed. Jenks, Gaynor, Rich and Miller, JJ., concurred. Judgment affirmed, with costs.  