#### William H. Morrell, Respondent, *against*The Long Island Railroad Company, Appellant.

(Decided February 4th, 1889.)

Defendant railroad company agreed with plaintiff to fill in, with sand and gravel to be procured by him, a trestle-work, part of the railroad, near the boundary of plaintiff’s land, and also to fill in enough • of plaintiff’s land for a depot site. Plaintiff’s object in having the trestle-work filled was to exclude from his land water flowing from the opposite side of the railroad. *Held,*that in*an action for breach of the contract, plaintiff might recover as damages the cost of filling in the depot site as stipulated; but that it was error to instruct the jury that, for failure to fill in the trestle-work, he was entitled to the cost of building an embankment on the line of the railroad sufficient to keep water from the other side of the railroad from flowing on his land, as defendant was not bound to build such an embankment.

Appeal from a judgment of the General Term of the City Court of New York affirming a judgment of that court entered upon the verdict of a jury.

The action was brought to recover damages for the breach of a contract by defendant, the Long Island Railroad Company, to fill in, with dirt, a trestle-work near the boundary of plaintiff’s land, and also a portion of plaintiff’s land sufficient for a depot site. At the trial it appeared that plaintiff desired such filling in of the trestle-work in order to prevent the flow on his land of water accumulating on the opposite side of the railroad. The court instructed the jury, that, as damages for defendant’s failure to complete the filling in of the trestle work, they might consider what it would cost plaintiff to build an embankment along the land of the railroad sufficient to keep such water from flowing in upon his land; and that, as damages for defendant’s failure to construct a depot site, plaintiff might recover the value of the earth necessary for that propose and the cost of carting it. To these instructions as to the rule of damages, defendant excepted. The jury found a verdict for plaintiff. From the judgment for plaintiff *128entered, thereon, defendant appealed to the General Term of the City Court, which affirmed the judgment; and from this decision defendant appealed to this court.

*Edward E. Sprague,*for appellant.

*Frank E. Blackwell,*for respondent.

Allen, J.

The plaintiff, among other things, alleged in his complaint that he was the owner and in possession of certain premises near the village of Flushing, County of Queens, State of New York ; that the defendant’s railroad ran along or near the easterly and northerly boundary of his lands over a trestle-work built for that purpose ; that he was desirous of procuring sand and gravel to fill in said trestle-work ; that he entered into a contract with the defendant, whereby he agreed to procure the necessary sand and gravel at a convenient place near the line of said road; that the defendant agreed to carry the same to said trestle-work, at a place designated by the plaintiff, and fill up said trestle-work as agreed; that the defendant further contracted to fill in upon the land of the plaintiff, at a place named by him, enough of said sand and gravel to make, a depot site about one hundred feet square, and would also, if plaintiff secured a large factory at or near the proposed depot, put in a switch for his convenience; that, in pursuance of said agreement, the plaintiff did procure said-sand and gravel as in said agreement provided ; that the defendant neglected and refused to carry out the said contract and fill in the said trestle-work, and also neglected and refused to make a depot site; that the defendant took all the earth so procured for it by plaintiff and used the same for its own purposes at other points upon said road than that agreed upon between the parties ; and for this alleged breach of contract the plaintiff claimed damages in the sum of $2,000. The answer denies the making of any such contract, or any violation thereof, or that any sand or gravel procured by the plaintiff was in pursuance of any contract with it or under its direction or at its request; with a further denial that any sand or *129gravel procured by the plaintiff had been used by the defendant. The issue thus joined was brought to trial before a jury, who found a verdict in plaintiff’s favor for the sum of $1,000. Upon appeal to the General Term of the City Court, the judgment entered upon the verdict was affirmed, and from such decision of the General Term, this appeal was taken.

The main question of fact involved was whether or not the alleged contract was ever made. The verdict of the jury has definitely settled this fact, and it cannot, on this. appeal, be made the subject of review. On the argument of the appeal we understood the appellant to admit the making of the contract, its breach, and the right of the plaintiff to damages. His criticisms were confined to the rule of damages adopted by the court as applicable to the case, and to which he had duly excepted.

We have no doubt that the rule applied by the trial judge in reference to the depot site, which was to be made upon the plaintiff's land, was correct, and that the fair cost of filling in the depot site, as stipulated, was recoverable *(Laraway*v. Perkins, 10 N. Y., opinion of Johnson, J., p. 373. That part of the charge, however, which relates to the damages to be recovered for the failure to fill in the trestle work, appears to be erroneous. The defendant having neglected and refused to fill in the trestle work upon its railroad as it agreed to do, the plaintiff was entitled to recover such damages as followed naturally and approximately from the breach, and were within the contemplation of the parties as likely to result therefrom. The fault of that portion of the charge which deals with the question of damages for the failure to fill in the trestle-work, is, it seem to us, that it erroneously assumes that the contract was different from what it actually was; that the railroad was liable if the filling in of the trestle-work did not exclude water from the plaintiff’s land and make' it dry. The whole scope of the charge on this branch of the case is that the railroad company was bound to make the plaintiff’s land dry. That was not the contract. The defendant did not agree to build an embankment that would keep the water from the plaintiff’s land, but agreed to fill in the *130trestle work with sand and gravel from the bank of earth owned by Mr. Bogert. It was therefore error, we think, to submit this part of the case to the jury upon the theory that the defendant had contracted to keep the water from the plaintiff’s land.

For the reason above stated, the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Larremore, Ch. J., and Bookstaver, J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.