#### Richard Treacy, Doing Business under the Trade Name and Style of Long Island Furniture Company, Respondent, *v.*Realty Associates, Appellant.

Second Department,

May 28, 1915.

Real property — injury *by*overflow of rain waters collected on roof of building — pleading— complaint stating cause of action.

Where the roof of a building is surrounded by walls, and rain waters are collected in a well in the center of the roof, the owner must keep the pipe used to discharge said waters open and unobstructed so that they shall not collect and overflow the parapet to the injury of adjoining property. The degree of care required is measured by the danger of overflow.

Hence, a complaint which in substance alleges that the owner allowed such drainage pipe to become choked and clogged with refuse so that it failed to carry off the water, which overflowed to the injury of the adjoining property of the plaintiff, states a cause of action.

Appeal by the defendant, Realty Associates, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 6th day of March, 1915, denying its motion for judgment on the pleadings, and overruling its demurrer to the complaint.

*Lynn C. Norris,*for the appellant.

*M. F. McGoldrick,*for the respondent.

*2Putnam, J.:

The complaint is for damage suffered by the lessee and occupant of No. 48 Myrtle avenue, by an incursion of rain water that overflowed from the roof of the adjacent building. This roof sloped inward toward the center, forming a well or depression'. Defendant had a low wall extending along its line abutting on the plaintiff’s premises. A leader was arranged to carry off water from this well. The complaint stated: “That at various times between the first and sixth days of July, 1914, the leader on defendant’s premises, which drained the roof thereof, became choked and clogged with refuse and rubbish and failed to carry off the water. That as a result thereof and on the first and fifth days of July, 1914, the water collected in the well or depression in the centre of said roof caused by the slope thereof, overflowed the wall of the defendant’s premises and percolated through the walls of the plaintiff’s building into the various floors thereof.” Defendant’s demurrer to this has been overruled.

Such an arrangement of the roof, so as to gather water into a central depression, which may run over and be discharged upon an adjoining building, manifestly threatening legal harm to the neighbor, requires a degree of care measured by the danger. And this duty applied especially to the leader, which seems to be all under defendant’s control and supplied the only safe exit for the water thus collected. That such an escape pipe had become choked and clogged with refuse and rubbish, and so failed to let the water out, was an allegation which called on defendant to explain, and to show how this rain water was impounded, notwithstanding defendant’s performance of its duties. A complaint which states facts that give rise to a duty is not defective if it omit the conclusion of law to be drawn from the facts set forth. *(Case*v. *Carroll,*35 N. Y. 385, 391; 29 Cyc. 567.) Besides the facts pleaded, a demurrer also admits other facts that may be implied by fair intendment. *(Sage*v. *Culver,*147 N. Y. 241.)

We think, therefore, that this complaint showed such a duty towards plaintiff as to call on defendant to answer. (40 Cyc. 651.)

On demurrer, the court is not in a position to determine *3whether defendant’s roof depression and the leader therefrom called for ordinary care, or if the danger from water so collected was such as to impose on defendant a higher requirement not to inflict injury on the premises adjoining. *(Fitzpatrick*v. *Welch,*174 Mass. 436; 48 L. R. A. 278; *Jutte*v. *Hughes,*67 N. Y. 267, 272.)

The order overruling the demurrer should be affirmed, with ten dollars costs and disbursements.

Thomas, Carr and Rich, JJ., concurred; Jerks, P. J., not voting.

Order affirmed, with ten dollars costs and disbursements.