
    Acker v. Town of New Castle.
    
      (Supreme Court, General Term, Second Department.
    
    May 14, 1888.)
    Towns—Obstruction of Surface Water by Construction of Highway—Action for —Evidence.
    In an action against a'town for damages caused by repairing a highway so as to throw water on plaintiff’s land, a complaint stating that the work was unnecessary, and was done in a negligent and unskillful manner, but not alleging any defect in the highway, does not state a cause of action under Laws 1881, c. 700, § 1, which provides that towns shall be liable for defective highways.
    Appeal from special term; J. O. Dykhan, Justice.
    Action brought by Rose Acker against the town of Hew Castle. Erom the order dismissing her. complaint plaintiff appealed. The following are the material portions of the complaint: “(4) That * * * said defendant * * * caused the said highways, in front of said plaintiff’s house and premises, to be filled in or raised with earth from four to five feet, so that said plaintiff’s premises were from six to seven feet below the level of said highway from what it was previous to the said filling in. (5) That the raising and filling up of said highways, in front of plaintiff’s house and premises, was unnecessary, and was done in such a negligent, unskillful, and unlawful manner that large and unusual quantities of drainage and surface waters were collected together, from a large surface of land, and discharged in great quantities, and with unusual violence, on plaintiff’s premises. * * *”
    
      John Gibney, for appellant. Odie Close, for- respondent.
   Pratt, J.

This action was brought to recover damages sustained by plaintiff by repairing a highway in the defendant town in such manner as to throw surface water upon her lands. In other words, the grade of the highway was raised in front of plaintiff’s premises, which dammed up the water, and caused it to set back upon plaintiff’s land. There is no allegation in the complaint of a defect in the highway, but there is an allegation that the work was done in a negligent and unskillful manner, which caused the injury. The complaint was dismissed because it did not state facts sufficient to constitute a cause of action. It is necessary, first, to ascertain what is meant by the allegation of negligence. It is plain in what the injury consisted and how it was caused. It cannot be doubted but that the commissioners had a right to raise the grade of the highway, and the charge is that raising the highway caused the water to flow and inflicted the damage. The negligence, therefore, must necessarily have consisted in failing to provide sewers or culverts under the roadway to carry off the surface water; so that, unless the commissioners were bound to provide such culverts, no liability would arise. The injury was plainly caused by the nature of the work, and an allegation that it was negligently done adds nothing to the force of the complaint. Ho act of negligence is described, and no inference can be drawn from the complaint, except that raising the grade of the highway without providing culverts caused the water to accumulate and flow upon plaintiff’s premises. It is the general rule that towns are not charged with keeping highways in repair, nor are the commissioners of highways agents or servants of the town. People v. Auditors, 74 N. Y. 310. But in 1881 the legislature passed an act, (chapter 700, Laws 1881,) section 1 of which reads as follows: “The several towns in this state shall be liable, to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioners of highways or bridges of said towns are now liable by law therefor, instead of such commissioners of highways.”' This act created no new liability, it simply provided that the suit might be brought against the town instead of the highway commissioners. In order to maintain an action against a town under this statute, facts must be alleged sufficient to constitute a cause of action against commissioners of highways prior to the enactment of the law of 1881. That this complaint did not set forth facts sufficient to warrant a judgment against such commissioners seems clear. The case of Gould v. Booth, 66 N. Y. 62, is decisive upon this point. That case holds that commissioners in grading highways are not bound to provide a channel for the drainage of surface water, and are not liable for injuries resulting from their omitting so to do. The inconveniences resulting to abutting owners by grading highways are to be regarded as the natural consequence of maintaining highways, and are presumed to have been contemplated and paid for when the land was taken for the purpose of a highway. Upon the merits, therefore, the complaint was properly dismissed. It may also be observed that there appears to be no exceptions taken to the ruling of the judge in dismissing the complaint. Judgment affirmed, with costs.  