
    Scranton and Lehigh Coal Company, Respondent, v. The City of New York, Appellant.
    Second Department,
    February 21, 1913.
    City of New York— Greater New York charter, section 361, construed — limitation of actions — action by owner of wharfage rights on tidal canal for obstruction thereof by city of New York.
    The provisions of section 361 of the Greater New York charter that “in the case of claims against said city accruing after the passage of this act for damages for injuries to personal property or for the destruction thereof, alleged to have been sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by said city, or any department, board, officer, agent or employee thereof, no action thereon shall be maintained against said city unless such action shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time, when and place where the damages were incurred or sustained, shall have been filed with the xunptroller of said city within six months after such cause of action shall have accrued,11 do not apply to an action by the owner of premises with appurtenant wharfage rights situate upon a tidal canal against the city of New York to recover damages caused by the obstruction of the canal by the defendant in discharging its overflow sewers therein.
    Said injury to the plaintiff’s rights does not affect “personal property11 within the meaning of the statute.
    Appeal by the defendant, The City of New York, 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 20th day of November, 1912, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to part of the answer to the amended complaint.
    
      Jesse W. Johnson [ James D. Bell and Archibald R. Watson with him on the brief], for the appellant.
    
      Arnold L. Davis [N. Raymond Heater with him on the brief], for the respondent.
   Jenks, P. J.:

The plaintiff, a coal merchant, owns certain premises with appurtenant wharfage rights, situate upon a tidal canal which is a navigable arm of the waters of New York harbor and a public highway. It has used always such premises as a yard and wharf for its business. The defendant has a statutory right to discharge its overflow sewers into the canal, subject to a statutory duty to keep the canal clear of any obstructions consequent to such discharge by dredging it from time to time. (Greater New York Charter, §§ 392, 393.) The plaintiff complains that such discharge has obstructed the canal materially, and practically has filled up that part near its premises, thereby obstructing, hindering and impeding navigation to and from the premises and thus has made a nuisance which the defendant, in disregard of its statutory ministerial duty, has neglected to abate.

The sole question presented by this appeal is whether the following provision of section 261 of the Greater New York charter applies: “and in the case of claims against said city, accruing after the passage of this act, for damages for injuries to personal property, or for the destruction thereof, alleged to have heen sustained by reason of the negligence of, or by the creation or maintenance of a nuisance by, said city, or any department, board, officer, agent or employee thereof, no action thereon shall be maintained against said city unless such action shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time when and place where the damages were incurred or sustained shall have been filed with the comptroller of said city within six months after such cause of action shall have accrued.” As I read the complaint, the injury charged is to the realty, in that the plaintiff has been deprived of the ordinary proper use thereof in its business, and in that its value has decreased on account of the impairment of access thereto. Such injury does not, of course, affect personal property. But the appellant’s plea is perforce of certain allegations of the complaint as follows: “That by reason of the premises and defendant’s neglect and failure to remove the obstructions in said canal occasioned by reason of the emptying of said overflow and other "sewers into it as aforesaid, the plaintiff was greatly hampered and delayed in the navigation of coal barges containing its supplies of coal to its said wharf and in the unloading of the same; was put to great additional expense in bringing said coal barges to its wharf and unloading the same, being compelled to employ extra labor and additional machinery, tackle and other appliances for the purpose; was compelled to pay and did pay demurrage and wharfage charges.” By refinement of argument it may be contended that a payment of money for such items and for such charges, which would not have been made but for the nuisance or the neglect to abate it, was the “destruction” of “personal property ” in the sense that money is a chattel. But even if the argument be not too fine and too technical outside of the domain of the political economist, it seems to me that in any event the answer is that the pleader does not seek to recover compensation for such outlay or disbursements, but thus pleads by way of specification under the charge of impairment of the ordinary and proper use of its premises for its business, and that such allegations are evidentiary in character. The judgment must be affirmed, with costs.

Hirschberg, Thomas, Carr and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.  