
    George Lamay, Respondent, v. The City of Fulton, Appellant.
    Fourth Department,
    November, 1905.
    Nuisance, action to abate r when provision of city charter as to filing ■' claim not applicable thereto.
    The provisions in the charter of the city of Fulton that a verified claim for damages arising from the change of grade of a street, must be presented within sixty days after such change to the board of public works, and, in the event of a disagreement as to the damage, that a commission be appointed to determine the same, refer only to daniages computable at a fixed sum.
    An action in equity lies, independently of such provisions, to abate a continuing nuisance, as where a change of grade and the filling up of natural channels discharges water and refuse on plaintiff’s land. ' Hence, in such action, plaintiff need not allege a compliance with said provisions of the charter.
    Nor does the provision of said charter, that no action shall be brought to enforce any claim, debt, etc., against the city until thirty days after it has been presented for audit, apply to such equitable action, when-, by the continuing nature of the wrong a claim cannot be presented at all.
    
      Appeal by the defendant, The City of Fulton, from ah interlocutory judgment of 'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 19th day of June, 1905, pursuant to an order entered in said clerk’s office on the 19th day Of June, 1905, overruling the defendant’s demurrer to the complaint, and also (as stated in the notice of appeal) from the said order pursuant to which the judgment appealed from was entered.
    
      Sheldon B. Mead, for the appellant.
    
      James A. Warner, for the respondent.
   Spring, J.:

This action is in equity to abate a nuisance. The claim of the plaintiff is that the defendant, in changing the grade of its streets negligently and improperly ” filled up ,the natural channels and the ditches, diverting the water from its usual course, and as a result thereof the accumulating water, whenever there were heavy rains, was discharged on the premises of the plaintiff accompanied with “ mud, filth, rubbish,” etc.

The ground of the demurrer to the complaint was that it failed , to state a cause of action. The particular objection Urged was the failure to allege a compliance with the provisions of the charter of the defendant hereafter referred to.

The nuisance is a continuous one recurring whenever there is high water, and the damages could not be ascertained when the action was commenced. The chief relief sought is to restrain the discharge of water and filth allowed to collect through the negligence of the defendant, and the past damages are a mere incident to the principal cause of action.

■ We think the charter of the city of Fulton (Laws of 1902, chap. 63, § 63, subd. 3) is not applicable. The subdivision mentioned provides that a person having a claim for damages arising from the change of grade of a street must present to the board of public works a verified claim therefor within sixty days after such change of grade is completed.” In the event of a failure to agree with the owner upon the amount of the damages to be awarded him, he may “ within thirty days after the presentation' of the claim * ' * * apply to the' Supreme Court for the appointment of three commissioners to determine the compensation to which he is entitled.” That subdivision refers to damages computable in a fixed sum of money. The claim of the plaintiff did not mature within sixty days after the change of grade. The floods which caused the dam age occurred at intervals and in all 'probability will continue from .time to time. •

■ The method of determining, damages, therefore, by commissioners appointed by the court set out in the statute does not relate to the cáse of a continuing nuisancé.' That practice applies where a -“ verified claim” has been presented and no agreement has been made within thirty days after its presentation. If the cause Of action hás not ripened within the sixty days’ Statute of Limitation, the claim Cannot be presented as required by the statute. ’ The deposit of filth and water may be immeasurably greater, a year after the completion of the change of grade than within the1 sixty-day period or there may be no invasion at all until after the lapse of that time. ■

Accordingly, an action in equity will arise to prevent the repeated invasions Of the plaintiff’s premises. ' .

Section 230 of .the defendant’s charter provides that no action to enforce any “ claim, debt or demand against the city. shall be brought ” until thirty days have elapsed after the claim,, debt or ' demand has been presented to the common council for audit. If the claim is of such a nature that it cannot be presented at all, of course the section does not apply..

The remedy by the charter does not preclude 4 person from maintaining an action to prevent further damages to his premises where the injury is continuous.

We think the case is-governed by Sammons v. City of Gloversville (175 N. Y. 346) and Ahrens v. City of Rochester (97 App. Div. 480). and kindred, cases.

The interlocutory judgment should be affirmed, with costs. . ,

All concurred.

Interlocutory judgment affirmed,. with costs, with, leave to defendant to plead over upon payment of the costs of the demurrer and of this appeal:  