This is an appeal from a. judgment entered on the verdict of a jury in favor of the plaintiff and against the defendant.
No exception having been taken by either side to the charge of the court, it must be assumed to be correct.
Appellant’s' attorney moved for a. new trial on all'-the ■ grounds specified in section 999 of the Code.
; Said motion was denied, an order was entered • thereon and an appeal was taken from said order.
•• This brings up for review the evidence adduced at the trial,, and although' contradictory, if enough is contained therein to sustain the plaintiff’s cause of action (the jury being the sole judges of the facts of the case), the verdict must be sustained.
The plaintiff claims that while he was the lessee of some garden land between One Hundred - and Sixty-foürth and One Hundred and. Sixty-fifth streets, west of Railroad avenue, in the city of New York, and while the defendants were, the lessees of Fleetwood race track, which adjoined his land on the north, the defendants, by their .carelessness or negligence, or some wrongful act on their part, in not keeping the drainage on their land in proper shape, order or repair, and- in dig*633ging superficial ditches on their land, wrongfully accumulated water in such large quantities that the existing drainage could not carry it off, and thus threw it off on the plaintiff’s adjoining lands, flooding them and destroying his garden seeds, etc., to his damage.
The evidence established that on May 2 and 3, 1893, there was a heavy rainfall; that plaintiff’s lands were flooded and damaged thereby.
The grounds of Fleetwood park in the northwest are higher than in the south 'and southeast.
There appears to be about three acres of wet meadow land in the northwest thereof, which is drained by the open drain or trench into eight acres of low, wet meadow lands in the south.
There is also an'old pond in the north which was formerly drained by a stream, known as Low Eavine, southward into the old mill brook, but now drained into the culvert, which is of stone, two feet by two feet six inches, built in the southeasterly part of said park, and connects with an eighteen-inch pipe carrying the water off into Webster avenue sewer.
In short, the drainage of the ^ whole park is accomplished from its north and northeasterly upper lands to the south and southeasterly lower lands.
The evidence 'shows that the defendants, at some time, caused ditches to be dug in said park .in order to drain the water from the upper part to the lower. That an old culvert in the park opposite Grand avenue was stopped up; that thereby a large quantity of water was carried down to the point where another culvert built in the south part of the park connected with an eighteen-inch pipe near Webster avenue, which pipe carried the water over into the Webster avenue sewer. That this last-mentioned culvert being considerably larger than the eighteen-inch pipe with which it was connected, and carrying water from, the east, and this additional water coming down from the upper western part, over these new made ditches, .exhausted the capacity of the eighteen-inch pipe to *634carry off all the quantities of water accumulating, and caused it to overflow and run southerly upon plaintiff’s adjoining low lands.
Mr. Schreiber testifies: “ That on May 5th she went to see Mrs. Biele, at Mo. 1 Grand, avenue, the first house next to- the- fence of Fleetwood park; she looked out a side window in Mrs. Biele’s house and saw water in the park ; the water was at the club house right opposite Mrs. Biele’s house; she saw a trench dug there; she showed me the trench ; there was water in the upper pond (which was near there); there was water in the trench; it 'was running; it was running down this way into that di-t'ch that got dug; that ditch was made so that the water could run down to the lower pond ; it was a fresh dug ditch; the ditch that was dug in the- park ran from the track where the horses ran out of it down to the lower ‘ part of the ground ; it ran right through the trench that got dug open.”
Maling testifies : “ I am a hotel keeper; in 1893, kept the' club house in Fleetwood park; kept it till the end of 1894;. I saw one pond at the foot of the club- house, which is at ■ the. west side of Fleetwood park; I am only familiar with the upper pond ; the water in the upper pond came from all over' the hills, and some of it went into the sewer which is connected with the club house, and when a heavy rainfall came it overflowed and went into the pond under the track, into' this upper pond; in this upper pond there was some sort of a cessjiool; in 1893, about the time of the-flooding of Schreiber’s garden, they were . digging a trench there; I saw them dig a trench; there is no pond there now; the water is drained off by this trench; I do not recollect how long -the trench was there; it was over a year-; I know that the trench was dug i-n the spring of 1893 ; that was the only trench that was dug that I saw.”
Mr. Thompson testifies: “ I am a civil engineer and am employed in the department of street improvements in the twenty-third and twenty-fourth wards,- and bad charge, of -the building of the Webster avenue sewer; I have- been in Fleet-*635wood park and have heard an upper pond testified here to-day * that would appear to be this plot of ground at Grand avenue if it were shut off by an elevated ground like the race track if the water was dammed back it would necessitate the forming of that pond at that place if the water accumulated there.”
Mr. Platz testified : “ I keep a hardware store and live at-161st street and Cortland! avenue; I was born in that neighborhood ; Gran'd avenue is not quite the lowest poink; I recollect the stream that flowed south there; I have seen the out-, side of Eleetwood park at Grand avenue, and have noticed an unused culvert that ran under the track; it is all stopped up now; that ran under the track into Grand avenue; on the other side of the track where the culvert ran was the upper pond; I noticed the ditch that had been dug there; that trench ran from about the center of the upper pond to the track and along the inside of the track down to the lower pond, and the pond opposite that on Grand avenue is where this unused culvert was stopped up; this culvert on Grand avenue is on the track property; I saw it inside the track fence; I could not see any culvert on the outside of the fence; it did come out before they filled up the avenue, but how it cannot,. - because the. avenue is almost as high as the track is.”
Mrs. Bieletestifi.es: “I live.in Grand avenue.near Fleet-wood park race track; my house is next to the fence, and I moved there in March, 1892; Mrs. Schreiber came to my house; I took her to the side window and looked over into-the race track with her; I showed her the water that was standing there; we saw the water and the gutter-; I saw a man digging that gutter, and before that trench was dug I think there was more water there ; how much water 1 do not know, very much when the trench was dug; the ditch was-there When Mrs. Schreiber came and I saw the man digging it,”
Mr. Guión, witness for. the defendant, testifies: “ I examined this portion where they claim that this ditch was dug; a piece of land is drained by that ditch; I noticed, ditches dug in the lower part of that tract of land, and did. *636not display these ditches on the map because Mr. McCrea said it was not necessary; there is a comparatively straight ditch running from the north side to the east end towards the culvert, it is about one foot deep; there is another straight ditch which strikes the first ditch as the arm of a ‘ Y ’ would strike the upright; this trench in the upper ground-is twelve inches wide and about two feet deep ; this same'ditch runs along down the inside of the track and empties' into that lower basin; the only ditch in dispute that I knew of was this ditch dug here in the upper part of the track.”
Mr. Moore testifies: ' “ The water began to run over to the east and that suggested making a little ditch there, and we did make a little ditch to get the water off, and when we got to the bottom of the ditch we made we carried it a little further^ and carried some more off, and we carried it that way until the water all worked off by degrees. I recollect the old drain that is under the track at Grand avenue, and I don’t think it is- stopped now. The track at Grand avenue is not on a level with the upper part; it is four feet higher.”
Thus it is established conclusively by the evidence of all the witnesses, as well on the part of the plaintiff as on the part of the defendant, that the old culvert on the.track land opposite Grand avenue was stopped, and that some new ditches Veré diig in order to drain the upper track land.
As to the overflow caused at the southerly side of the track at the point where the culvert connected with the eighteen-inch pipe, and where the overflowing is asserted to have taken place, the evidence shows that the water was coming out of that culvert, out from Fleetwood .park through a hole, and Mr. Devlin says :■ “ I recollect the morning of May 3rd, 1893, when .Mr. Schreiber’s garden was floodedI got there in the morning about half-past six; I looked where thé water was coming from ; it was coming from the outside of Fleetwood park fence out of a hole that hole looked as if it was coming from Fleetwood park; that is the culvert at the southeast corner of Fleetwood park ; that is the hole at the end of. the culvert. (Exhibit D shown witness.) ‘
*637“ The distance from the opening of this culvert to Schreiber’s land is ninety feet.
“ There is a stream of water running through the track that drains the ravine, and there is another stream that flows into Fleetwood park below that, through a culvert that drains a piece of meadow land extending up to 169th street, where it meets Webster avenue.
“ North of the track is a high bluff, and all that falls on that would naturally flow that way south and through this culvert.”'
Thus, it seems to be conclusively established that the water-coming, in consequence of a heavy rainfall, from that whole race track down to the lowest southern part of it, was of such an enormous quantity that this culvert, which was of two feet and six inches where it connected with an eighteen-inch pipe, could not carry off all the flow of water, and naturally overflowed on plaintiff’s adjoining land and caused the damage; and it is further conclusively shown that the defendants were at fault when they increased this enormous quantity by drainage, by digging extra ditches, and instead of allowing water to come through the trenches from the upper pond, in which the water from the upper three acres of wet meadow land congregated, into the lower eight acres of meadow land where the water could spread, it was, through these newly dug ditches,' carried down to this culvert, increasing the quantity of water and causing the overflow.
There was, therefore, evidence of a wrongful act committed on the part of the defendants, from which the jury could conclude that they contributed to the overflowing and caused the damage.
The jury were the sole judges of the facts -in the case and of the credibility of the witnesses, and the appellate court cannot interfere therewith.
It is; true that it does not affirmatively appe'ar by as convincing evidence as might be that these ditches were dug prior to the 2d or 3d of May, 1893.
The defendants claim they were dug within three or four days thereafter, but the act of the digging of the ditches and *638the damage done hy the overflowing appear hy the evidence _ to be so closely connected with each other that the jury had .a right to infer that tlie damage-was caused by these newly dug ditches.
Upon the facts, as found by the jury -the case comes clearly within the law holding the proprietor liable for the damage caused by the increased flow of. the water. Noonan v. City of Albany, 79 N. Y. 470.
. The verdicf should be sustained and the judgment is affirmed, - with costs;
Van Wtck, Oh. J., and McCarthy, J.,, concur.,'
Judgmént affirmed,, with costs.