
    (75 App. Div. 304.)
    SPOSATO v. CITY OF NEW YORK.
    (Supreme Court, Appellate Division, Second Department.
    October 10, 1902.)
    1. Waters — Diversions—Action for Damages — Landlord and Tenant.
    Damages for tbe drawing of waters from lands by a pumping station near by being tbe diminution in tbe rental value, action tberefor can be maintained only by tbe landlord; tbe operations having commenced before tbe lease.
    Appeal from trial term, Nassau county.
    Action by Carmine Sposato against the city of New York. From a judgment dismissing the complaint on the opening, plaintiff appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    George Wallace, for appellant.
    R. Percy Chittenden' (James McKeen, on the brief), for 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 subsurface of such premises. It was conceded that the city owned the land on which the pumping station was erected, and the land upon which was 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 we were right in holding in the case of Reisert v. City of New York, 69 App. Div. 302, 74 N. Y. Supp. 673, that the diminished rental value is the measure of damages in cases of this character, it follows 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. 525, 530, 37 N. Y. Supp. 1093, involving damages for a nuisance, and has never been questioned since the decision in Kernochan v. Railroad Co., 128 N. Y. 559, 29 N. E. 65. 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. Railroad Co., 17 App. Div. 509, 45 N. Y. Supp. 515; Sterry v. Railroad Co., 129 N. Y. 619, 29 N. E. 68;. Lynch v. Railroad Co., 129 N. Y. 274, 29 N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep. 523; and Kearney v. Railroad Co., 129 N. Y. 76, 80, 29 N. E. 70. 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 owners of the two estates, would he 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. concur.  