
    Carmine Sposato, Appellant, v. The City of New York, Respondent.
    
      Subterranean water /withdrawn from, leased land by driven well pumps — whe7'e the lease was executed after the pumps were in operation, the lessor and not the lessee may recover the damages incident thereto.
    
    A lessee of premises located in the- vicinity of the pumping stations, forming part of the water works system of the city of New York, whose lease was exe- ■ cuted after the operation of such pumping stations had been commenced, cannot maintain an action against the city to recover damages accruing during the term of the lease because of the withdrawal of surface and sub-surface water from the leased premises incident to the operation of the pumps.
    
      Semble, that the right of action for such damages vests in the lessor.
    Appeal by the plaintiff, Carmine- Sposato, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 21st day of March, 1902, upon the dismissal- 'of the complaint by direction of the court upon the opening of counsel at a trial at the Nassau Trial Term.
    
      George Wallace, for the appellant.
    
      H. Percy Chittenden [James McKeen with him on the brief], for the respondent.
   Woodward, J.:

This is an action to recover damages alleged to have been sustained by the plaintiff as lessee of certain' premises on Long Island, alleged to be injuriously affected by the operation of the •defendant’s pumping stations. It was stipulated upon the opening •of the case that two of the pumping stations complained of were erected in 1885, and that they had been operated since that time, and that the third one was constructed in 1894. The plaintiff leased the premises in 1898, for a term of five years, and alleges that he has sustained damages to the amount of $2,500 by reason Of the pumps drawing water from the surface and sub-surface of such premises. It was conceded that the city owned the land on which the pumping station was erected, and the land upon Avhich was situated the conduit used in transporting the water to the borough of Brooklyn. On motion of defendant’s attorney the •complaint was dismissed upon the opening of plaintiff’s counsel. Appeal comes to this court.

If Ave were right in holding, in the case of Reisert v. City of New York (69 App. Div. 302), that the diminished rental value is the measure of damages in cases of this character, it folloAvs that the same rule is to be applied which has long been maintained in the elevated railroad cases, that the damages accruing during the term of a lease are indivisible and belong to the landlord, and are recoverable by him as past damages. This doctrine was applied in the case of Dumois v. Hill (2 App. Div. 528, 530), involving damages for a nuisance and has never been questioned since the decision in Kernochan v. N. Y. E. R. R. Co. (128 N. Y. 559). In the case cited the question of the relative rights of lessor and lessee was fully discussed, and the rule then laid down has been recognized and followed in a great variety of cases, including Winthrop v. Manhattan R. Co. (17 App. Div. 509); Sterry v. N. Y. El. R. R. Co. (129 N. Y. 619); Lynch v. M. E. R. Co. (Id. 274) and Kearney v. M. E. R. Co. (Id. 76, 80). The court in the leading case say : “ The loss falls upon the lessor, and the continuance of the wrong during the term imposes no pecuniary loss upon the lessee. To hold that the right of action vests in the-lessee,.or to divide the claim between the oAvners of the two estates, would be contrary to equity and to the presumed intention of the parties.”' Until a different rule is laid down for measuring damages in cases, of this general character, we deem it our duty to follow this decision,, and to hold that the plaintiff failed to state sufficient facts to justify his cause of action.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  