
    Seligman A. Myers, Doing Business Under the Firm Name of and Style of “ H. & E. & S. Myers,” Respondent, v. Dock Contractor Company, Appellant.
    (Supreme Court,Appellate Term, First Department,
    February, 1916.)
    Damages — for injury to merchandise — contracts — evidence — negligence — judgments.
    Where, in an action to recover damages for injury to merchandise caused by the flooding of premises occupied by plaintiff through the alleged negligence of defendant who was engaged in building a section of a subway under a contract with the city of New York, it appears from plaintiff’s proof that the damage occurring was in no way connected with the improper construction of a wall built by defendant, a judgment in favor of plaintiff will be reversed and the complaint dismissed.
    Where, in an action to recover damages for injury to merchandise caused by the flooding of premises occupied by plaintiff through the alleged improper construction of a wall separating the subway from plaintiff’s premises and the alleged negligence of defendant in failing to use adequate waterproofing material in or during the construction of .the wall, there is ample evidence to support the finding of a jury as to defendant’s negligence as the proximate cause of the injury sued for and as to the extent of the damage claimed, a judgment in favor of plaintiff will be affirmed.
    Appeal by defendant from judgments of the Municipal Court of the city of New York, borough of Manhattan, third district, in two actions, in favor of plaintiff.
    Phelan Beale (Robert M. Richter, of counsel), for appellant.
    Feiner & Maass (David R. Bernstein, of counsel), for respondent.
   Guy, J.

Defendant appeals from judgments in favor of plaintiff in two actions tried together by the court, without a jury, brought to recover damages for injury to merchandise caused by the flooding of premises occupied by plaintiff, through the alleged negligence of the defendant.

Defendant was engaged in building a section of the subway under a contract with the city of New York, pursuant to chapter 4, Laws of 1891, and the acts amendatory thereof.

Plaintiff, as tenant, occupied the first floor and basement of 684 Broadway on the northeast- corner of Great Jones street, and a vault space adjacent thereto, which extended beyond the building line under the sidewalk to the curb line for a distance of about forty feet along Broadway and eighty feet in Great Jones street. The plans for the construction of the subway included the permanent use of most of the vault under Broadway, the wall of the proposed subway coming within a foot or two of the Broadway building line and parallel to it. A portion of the vault space under Great Jones street was to be used similarly. About twenty feet of the Great Jones street wall of the vault, beginning at the Broadway curb line and running east, was tom down in the course of the construction of the subway and rebuilt with a catch basin or sewer at the easterly -end.

There is no allegation or proof in the complaint that plaintiff had ever actually received from the city any license to use or occupy said vault space, the only evidence thereof being the actual use of the vault space by plaintiff since entering into possession of the premises 684 Broadway as lessee.

Although these two cases were tried as one action, there are two judgments,— one, in action No. 1, for $136.50 for damage done on May 5 and May 22, 1915, to plaintiff’s property, by water coming into the Great Jones street vault adjacent to premises 684-Broadway; the other, in action No. 2, for $404.71, damage done June 30, 1915, to his property by water coming from Broadway into the plaintiff’s basement in said premises. The facts are different in the two actions.

As to action No. 1, damage done by water coming from Great Jones street, plaintiff’s own evidence shows that the damage occurring on May 5 and May 22, 1915, was caused by water coming through the old wall on Great Jones street side, at a point east of the easterly limit of the new subway wall, and was in no way connected with improper construction of the wall constructed by the defendant. The judgment in action No. 1, for $136.50 must, therefore, be reversed with $30 costs and the complaint dismissed with costs.

Action No. 2 is brought to recover for damages occurring on June 30, 1915, by reason of the flooding of the basement of 684 Broadway, occupied by the plaintiff, through the alleged improper construction of the wall separating the subway from plaintiff’s premises, and the alleged negligence of the defendant in failing to use adequate waterproofing material in or during the construction thereof. There is ample evidence in this action to support the finding of the court as to defendant’s negligence as the proximate cause of the injury to plaintiff’s merchandise, and as to the extent of such damage.

Judgment in action No. 2, for $404.71, must therefore, be affirmed with $25 costs.

Bijur and Gavegan, JJ., concur.

Judgment in action No. 1 reversed, with thirty dollars costs. Judgment in action No. 2 affirmed, with twenty-five dollars costs.  