Wuster v. Levitt

262 A.D. 854, 28 N.Y.S.2d 161, 1941 N.Y. App. Div. LEXIS 6255

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1941
• Status: Published

Opinion

Action to recover damages and for injunctions, because of water from overflowing sewers flooding plaintiffs’ premises. On cross-appeal by plaintiffs, order granting motion of appellants-respondents to dismiss the first, second, fourth and fifth causes of action and denying the motion as to the third cause of action, modified on the law by denying the motion as to the first and second causes of action also, and, as thus modified, the order, in so far as appealed from, is affirmed, without costs to either party. On appeal by appellants-respondents, order, in so far as appealed from, affirmed, without costs. The first and second causes of action are not sufficient in respect of any flooding of plaintiffs’ premises that occurred after the dedication to and acceptance of the street by the town. (Board of Education, Union Free School Dist. No. 6, Town of North Hempstead v. Town of North Hempstead, 259 App. Div. 733; 261 id. 1102.) We hold these two causes of action good only because paragraph 16 of the amended complaint is broad enough to admit evidence that plaintiff’s premises were flooded prior to the acceptance of .the street by the town, at a time when the sewer system was controlled by the appellants-respondents. In the opinion of the court the third cause of action as a pleading is sufficient. (Bareham & McFarland, Inc., v. Kane, 228 App. Div. 396.) The time of appellants-respondents to answer is extended until ten days from the entry of the order hereon. Lazansky, P. J., Hagarty, Adel, Taylor and Close, JJ., concur.