Murcott v. City of New York

Appellate Division of the Supreme Court of New York

Murcott v. City of New York

181 A.D. 171, 168 N.Y.S. 50, 1917 N.Y. App. Div. LEXIS 9041

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 29, 1917

StatusPublished

Cited by4 cases

This text of 181 A.D. 171 (Murcott v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Murcott v. City of New York, 181 A.D. 171, 168 N.Y.S. 50, 1917 N.Y. App. Div. LEXIS 9041 (N.Y. Ct. App. 1917).

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Opinion

Thomas, J.:

In a suit to restrain the maintenance of a sewer system it appeared that it had been determined in an earlier action at law between the same parties that as regards the plaintiffs’ property, and to the substantial damage thereof, the system was illegally constructed or maintained. The status so established by judgment continuing authorized the plaintiffs to seek its abatement in a suit in equity, which would, indeed, have- been in the first instance a proper remedy. In such suit the damages caused by the overflow of the sewers at several times into plaintiffs’ property are incidental to the main relief, and it was not necessary for the purposes of the injunctive relief or the recovery, of such damages to present to defendant claims or notice of intention to sue, or to commence the action pursuant to section 261 of the Greater New York charter, as amended by chapter 452 of the Laws of 1912. (Sammons v. City of Gloversville, 175 N. Y. 346; Lamay v. City of Fulton, 109 App. Div. 424; Penfield v. City of New York, 115 id. 502; Ahrens v. City of Rochester, 97 id. 480; Flax-man v. City of New York, 178 id. 935.) It is also considered [173]*173that the plaintiffs were damagedgby the overflow on January 7, 1915, but the ascertainment thereof should be remitted to the trial court, also the claims for damages at earlier periods may be examined. It is suggested that there should be a judgment for an injunction with suspension thereof for a time deemed necessary for the completion of the new sewer system. (Sammons v. City of Gloversville, 175 N. Y. 346.)

The judgment so far as it awards plaintiffs damages for the overflow of August 4, 1915, is affirmed. The plaintiffs should have the costs of this appeal.

Present — Jenks, P. J., Thomas, Stapleton, Rich and Blackmar, JJ.

■Judgment so far as it awards damages to plaintiffs for the overflow of August 4, 1915, unanimously affirmed, with costs of this appeal to plaintiffs.

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Thomas, J.:

In a suit to restrain the maintenance of a sewer system it appeared that it had been determined in an earlier action at law between the same parties that as regards the plaintiffs’ property, and to the substantial damage thereof, the system was illegally constructed or maintained. The status so established by judgment continuing authorized the plaintiffs to seek its abatement in a suit in equity, which would, indeed, have- been in the first instance a proper remedy. In such suit the damages caused by the overflow of the sewers at several times into plaintiffs’ property are incidental to the main relief, and it was not necessary for the purposes of the injunctive relief or the recovery, of such damages to present to defendant claims or notice of intention to sue, or to commence the action pursuant to section 261 of the Greater New York charter, as amended by chapter 452 of the Laws of 1912. (Sammons v. City of Gloversville, 175 N. Y. 346; Lamay v. City of Fulton, 109 App. Div. 424; Penfield v. City of New York, 115 id. 502; Ahrens v. City of Rochester, 97 id. 480; Flax-man v. City of New York, 178 id. 935.) It is also considered [173]*173that the plaintiffs were damagedgby the overflow on January 7, 1915, but the ascertainment thereof should be remitted to the trial court, also the claims for damages at earlier periods may be examined. It is suggested that there should be a judgment for an injunction with suspension thereof for a time deemed necessary for the completion of the new sewer system. (Sammons v. City of Gloversville, 175 N. Y. 346.)

The judgment so far as it awards plaintiffs damages for the overflow of August 4, 1915, is affirmed. The plaintiffs should have the costs of this appeal.

Present — Jenks, P. J., Thomas, Stapleton, Rich and Blackmar, JJ.

■Judgment so far as it awards damages to plaintiffs for the overflow of August 4, 1915, unanimously affirmed, with costs of this appeal to plaintiffs.

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Bluebook (online)

181 A.D. 171, 168 N.Y.S. 50, 1917 N.Y. App. Div. LEXIS 9041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murcott-v-city-of-new-york-nyappdiv-1917.

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