#### Valentine Fromm, App’lt, *v.*Daniel Ide, Resp’t.

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

*Filed June 2, 1891.)*

Negligence—Flooding lands.

The action was brought for flooding plaintiff’s lands by reason of negligence in constructing a ditch. The proof showed that defendant, who was the commissioner of highways, was sent by the board of health to drain off water which stood on lands of plaintiffs and others, and said he would charge them a certain sum for so doing; that he dug out the ditch, but thereafter the premises were more seriously flooded than before, and it was found that the slope of the ditch was in the wrong direction. The court thereupon nonsuited plaintiff on the ground that the proof showed that a recovery could be had only for breach of contract. *Held,*error; that the cause of action shown was not on contract, but of negligence.

Appeal from a judgment of Monroe county court, entered May 6, 1890, dismissing the plaintiff’s complaint; and, also, from an order of the same court made the 3d day of May, 1890, denying the plaintiff’s motion for a new trial

*Ivan Powers,*for app’lt; *Costich & Cummings,*for resp’t.

Macomber, J.

This action was brought to recover damages for flooding the lands of the plaintiff, under allegations of negligence in the construction of a certain ditch, by reason of which the rental value of the plaintiff’s lands during the years 1888 and 1889, on Morton street in the town or Irondequoit, was materially lessened.

It appears that the defendant is the commissioner of highways of the town of Irondequoit. The plaintiff had notified the board of health of that town that water stood upon his premises, coming from the highway. Shortly thereafter the defendant came to the plaintiff and said he had been sent there by the board of health, and was about to drain off the water. There were two other persons in the vicinity similarly situated with the plaintiff, and the-drainage was to relieve them as well as the plaintiff of the water coming from the highway.

The plaintiff’s evidence tended to show that the defendant said he should charge each of these persons twenty-five dollars for making the necessary digging to carry off the water; that thereupon he dug out the ditch, but at about the time he was finishing it he was notified that it would be inadequate for the purpose. In the fall following this work, and also in the spring thereafter, the plaintiff’s premises were more seriously flooded than ever before with dirty and unwholesome water. There was evidence showing that *572the east end of the ditch was higher than the west end, though it was designed to carry the water from west to east. Under these facts the plaintiff offered to prove his damages, when his progress-in the trial was arrested and he was nonsuited, apparently upon the ground that the action was for a tort, and that the proof showed, that a recovery could be had only for a breach of contract

This, however, seems to us to have been a misconception of the scope of the action. In brief, it is, that the defendant, while engaged in the discharge of his duties as street superintendent, under direction of the board of health of the town of Iron dequoit, in carrying off waters in the highway, so negligently and carelessly dug thexditch therefor that the flooding of the premises was increased rather than diminished. This is not an action upon a contract It is an action for negligence in that a person, while engaged in a lawful business, was guilty of an omission of duty which he owed to the plaintiff to perform the work in a reasonably skillful manner. This principle is elementary. Whittaker’s Smith on Negligence, 480.

The judgment and order appealed from should be reversed and a new trial granted in the county court, with costs to abide the event

Dwight, P. J:, concurs.