
    Fromm v. Ide.
    
      (Supreme Court, General Term, Fifth Department.
    
    June 2, 1891.)
    Action—Form—Contract and Tort.
    Defendant, while in the discharge of his duty as street superintendent under direction of the hoard of health of a town, charged plaintiff §35 for digging a ditch to carry off waters in the highway, but which was so negligently dug that the flooding of plaintiff’s premises was increased rather than diminished thereby. Held, that the injury was not a breach of contract, but one resulting from defendant’s neglect of duty, and that plaintiff’s action to recover therefor was properly ex delicto in form.
    Appeal from Monroe county court.
    Action by Valentine Fromm against Daniel Ide. ■ From a judgment dismissing the plaintiff’s complaint, and from an order denying motion for a new trial, plaintiff appeals.
    Argued before Dwight, P. J., and Macomber, J.
    
      Ivan Powers, for appellant. Costich & Cummings, for respondent.
   Macomber, J.

This action was brought to recover damages for flooding the lands of the plaintiff, under allegations of negligence in the construction of a certain ditch, by reason of which the rental value of the plaintiff’s lands during the years 1888 and 1889, on Norton street, in the town of Irondequoit, was materially lessened. It appears that the defendant is the commissioner of highways of the town of Irondequoit. The plaintiff had notified the board of health of that town that water stood upon his premises coming from the highway. Shortly thereafter the defendant came to the plaintiff, and said he had been sent there by the board of health, and was about to drain off the water. There were two other persons in the vicinity similarly situated with the plaintiff, and the drainage was to relieve them, as well as the plaintiff, of the water coming from the highway. The plaintiff’s evidence tended to show that the defendant said he should charge each of these persons $25 for making the necessary digging to carry off the water; that thereupon he dug out the ditch, but at about the time he was finishing it he was notified that it would be inadequate for the purpose. In the fall following this work, and also in the spring thereafter, the plaintiff’s premises were more seriously flooded than ever before with dirty and unwholesome water. There was evidence showing that the east end of the ditch was higher than the west end,, though it was designed to carry the water from west to east. Under these facts, the plaintiff offered to prove his damages, when his progress in the trial was arrested, and he was nonsuited, apparently upon the ground that the action was for a tort, and that the proof showed that a recovery could be had only for a breach of contract. This, however, seems to us to have been a misconception of the scope of the action. In brief, it is that the defendant, while engaged in the discharge of his duties as street superintendent, under direction of the board of health of the town of Irondequoit, in carrying off waters in the highway, so negligently and carelessly dug the ditch therefor that the flooding of the premises was increased rather than diminished. This is not an action upon a contract. It is an action for negligence, in that a person, while engaged in a lawful business, was guilty of an' omission of duty which he owed to the plaintiff to perform the work in a reasonably skillful manner. This principle is elementary. Whit. Smith, Neg. 480. The judgment and order appealed from should be reversed, and a new trial granted in the county court, with costs to abide the event.  