#### Richard Murray and Johanna Morrisey, Pl’ffs and Resp’ts, *v.*Allison M. Archer, Charles D. Archer and George Archer, Def’ts and App’lts.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Nuisance—Occupants of premises—Who liable.

Where the gutter on the roof of defendants’ building conducted the water falling on it, upon the plaintiffs’ premises and injured his goods, the defendants are liable in trespass for the damage done.

2. Same—Proper parties—Tenants liable for damages.

The defendants were proper parties in the action, as they were in occupancy of the premises and received the benefits thereof, although they were only trustees of the property, and had no personal interest in it, and although the gutter complained of had been there before they had control of the property. All are regarded as principals in maintaining a nuisance, and a tenant in possession is liable for damages caused by his premises being out of repair.

3. Same—Damages—Evidence of rental value admissible.

To permit proof of the rental value of the plaintiff’s premises, with and without the water shed from defendants’ yard, was one and a proper method to ascertain the damages.

Appeal from a judgment entered October 31, 1888, at a trial term of Rockland county court, on a verdict for $500 for plaintiffs, and from the order denying a motion for a new trial.

The plaintiffs are copartners, and have-been engaged in the manufacture of bricks at Haverstraw, 1ST. Y., upon premises leased by them of James Eckerson and others, owners, since March, 1885. The premises front on the Hudson river. During the time the plaintiffs have so occupied the premises, there has been a kiln-shed thereon used for the storage and burning of bricks thereunder, being about 158 long and 86 feet wide. The bricks are dried upon a yard west of the kiln-shed, whence they are wheeled, when dry, under the shed and there placed in a kiln. During the time stated in the complaint the defendants occupied a brick-yard north of and adjoining that of the plaintiffs, upon which they carried on the same business, and had two brick kilns parallel to and adjoining each other, the roofs between the same being connected by means of a leader or gutter, the descent of which is in the direction of plaintiffs’ premises. The roofs of these two kiln-sheds of defendants’ form a valley 129 feet long and 50 feet wide from peak to peak, drained by the gutter in question, and all the water falling thereon when it rained was discharged against and through the north end of plaintiffs’ kiln-shed, whence the water would flow over the plaintiffs’ kiln ground, wetting and destroying large quantities of newly moulded bricks, estimated by a witness at the trial at *818240,000, and extinguishing many of plaintiffs’ fires while burning brick.

The defendants show, by testimony, that they had no individual interest in the premises occupied by them, but that they held the property as trustees under the will of their father, and that the gutter in question had been there long before they got control of the proverty.

The plaintiffs were permitted against the objection of defendants to say what the rental value per year of their whole brick yard premises is without the gutter and with it.

*Alonzo Wheeler,*for Allison M. Archer, and *Irving Brown,*for Charles D. Archer, app’lt; *William McCauley, Jr.,*for resp’ts.

Pratt, J.

The defendants were proper parties; while they had the property as trustees they were in occupation and receiving the benefit thereof.

All are regarded as principals in maintaining a nuisance, and a tenant in possession is liable for damages caused by his premises being out of repair; so that upon both grounds the defendants were liable.

We find no errors in the rulings upon the trial, or in the charge of the trial judge. To permit proof of the rental value of the plaintiff’s premises with and without the water shed from the defendant’s yard was one, and a proper method to ascertain the damages. That the plaintiff was entitled to at least nominal damages is clear from the fact that the defendant’s gutter did discharge water upon plaintiff’s premises. The case really only involved questions of fact that have been disposed of by the jury. We are unable to say that the damages are excessive from anything that appears in the case or from the amount of the verdict.

Judgment affirmed, with costs.

All concur.