
    HENRY JUTTE, Plaintiff and Appellant, v. WILLIAM J. HUGHES, Defendant and Respondent.
    DAMAGES. WHEN SPECIAL DAMAGES CAN BE RECOVERED..
    They must be averred in the complaint, else they can not be proved on the trial.
    In the case at bar, the action was to recover damages for the overflow of water into the cellars of the plaintiff from the premises-of defendant, caused by the defective sewerage of defendant’s privies and drains.
    The plaintiff offered to prove special damage, caused by the loss of rent on his premises, the tenants leaving because of the condition of the cellars, &c. The court refused to receive this evidence because there was no claim set up in the complaint for loss of tenants, &c. The only exception of the defendant that was. heard and considered, on the appeal, was. to this ruling, and the charge of the judge in reference thereto.
    The earliest decision of this court on this subject (Shipman v. Burrows, 1 Sail’s Superior Ct. R. 411) referred to, and approved.
    Before Freedman and Speir, JJ.
    
      Decided December 6, 1875.
    The plaintiff is the owner of 97 & 99 Lewis street,, tenement houses, the rears of which abut upon the yard; also of No. 97 Lewis street, belonging to the-defendant; and this suit is brought to recover damages for water which flows from defendant’s yards into the cellars of the plaintiff’s houses in such quantities as-to soak and cover the floor of the cellars, and render them permanently unfit for use, and also to injure the walls and other portions of the building, and created such an offensive stench as to interfere with the plaintiff’s use of the premises, and the letting thereof. The-cause of the damages complained of, alleged in the complaint, was that the defendant had failed to keep-the privies, drains, and drain-pipes in his building in proper repair. The jury rendered a verdict in defendant’s favor.
    By stipulation, it is agreed that the only exceptions the plaintiff desires to raise on the appeal are the exceptions to the charge, and the exceptions to the ruling-of the court in excluding the rental value of the premises as an element of damage.
    
      George W. Wengate, for appellant.
    
      Warren G. Brown, for respondent.
   By the Court.—Speir, J.

The plaintiff under the-allegation in thé complaint, that by reason of the defective sewerage of defendant’s privies, drains, and drainpipes, an overflow of water into the cellars of the-plaintiff’s houses had been caused, rendering them permanently unfit for use, offered to show special damages from the loss of tenants on account of the cellars being in this condition. The court refused to receive the evidence, as proving any special damages, upon the ground that there was no claim for damages in the declaration for loss of tenants.

The result of this ruling led necessarily to that portion of his charge where he instructed the jury that, in case they found for the plaintiff, he could only recover for the damage to the wall and building, and not for the loss of the rental value of the building. If this ruling was correct, there was nothing left in the complaint, as the evidence shows, which would entitle the plaintiff to damages in case the jury found in his favor. The jury found for the defendant. The refusal to receive proof of special damages, under the circumstances, was clearly right. The principle was established among the first cases decided by the learned judges who first presided on the organization of this court. Each of those distinguished justices gave his individual opinion, and the law remains to this day as it was then pronounced (Shipman v. Burroughs, 1 Hall’s Superior Ct. R. 411-430).

Judgment must be affirmed, with costs.

Freedman, J., concurred.  