#### JONES v. DE COURSEY.

(Supreme Court, Appellate Division, Fourth Department.

December 15, 1896.)

1. Evidence—Admission—Error Cured.

Error in permitting a witness to testify to the then present capacity of a canal, on the issue as to what it was a year and a half previous, was cured by the admission of other evidence that the capacity had not been changed in the meantime.

S. Same—Relevancy.

On an issue of breach of a contract to so maintain a water channel that its capacity should not be less than it was when under state control. Its original dimensions, and its capacity as maintained by the state, may De shown.

8. Nonjoinder op Party Plaintiff—Recovery.

In an action by one of two tenants in common for damages to the common property, where defendant has waived the defect of parties plaintiff, error in permitting plaintiff to prove the total damage was harmless, where he waa allowed to recover only one-half of it.

4. Contract—Intent—Question of Fact.-

Where both parties introduce evidence of the intent with which a contract was made, it is not error to submit the question of intent to the jury.

5. Same—Harmless Error.

Where a contract, whose construction is for the court, is submitted to the jury, and by them rightly construed, the error is harmless.

6. Executory Covenant—Breach—Effect'.

Where a contract provided that defendant should clean out and maintain a water channel on which plaintiff’s lands abutted, and defendant negligently permitted loose soil to be carried down and so raise the bed of a creek at the mouth of the channel as to cause the water to overflow a spillway in time of flood, he was liable for the damages resulting to plaintiff, though the contract provided that he should not be liable for the overflow of the spillway in times of high water.

This action was begun May 11, 1894, pursuant to leave granted March 12, 1894, to .recover damages to plaintiff’s farm, caused by a flood in August, 1893. The farm is in the town of Leicester, in the Genesee valley, between the city of Rochester and the village of Mt. Morris. The Genesee Valley Ganal, extending from Rochester, through the valley of the Genesee river, to Mt. Morris, thence to the Allegany river at Glean, was constructed pursuant to chapter 257 of the Laws of 1836, and was extended from Glean to Mill Grove, on the Allegany river, pursuant to chapter 247 of the Laws of 1857. May 25, 1863, pursuant to the statutes of this state, the canal board declared the Genesee Valley Canal completed. By chapter 404 of the Laws of 1877 this canal was abandoned, and by section 2 of chapter 326 of the Laws of 1880 the commissioners of the land office were required to convey to a railroad corporation the banks and prism of this canal between the village of Mt. Morris and the Erie Ganal in the city of Rochester. The act provided that the railroad corporation should “save harmless the state of New York from any loss, costs, claim or damage arising from the transfer or sale of said canal, as herein provided, and from any claim for damage arising from the construction or operation of said railroad.” Subsequently a railroad was constructed by a corporation along the line of this canal, and the hanks and prism were conveyed to the corporation, pursuant to chapter 326 of the Laws of 1880. In 1887 the Western New York & Pennsylvania Railroad Company was incorporated, and succeeded to the rights of the first-mentioned railroad corpora*579tion. May 1, 1888, the Western New York & Pennsylvania Railroad Company and the plaintiff herein entered into a contract, of which the following is a copy:

*578Action by Charles Jones against Samuel Q-. De Coursey, as receiver of the Western New York & Pennsylvania Railroad Company on a contract. There was a verdict of $187.43 in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard by the appellate division in the first instance.

Denied.

*579“This agreement, made this first day of May, in the year of our Lord one thousand eight hundred and eighty-eight, between the Western New York & Pennsylvania Railroad Company, a corporation duly organized and existing under the laws of the states of New York and Pennsylvania, of the first part, and Charles Jones, of Geneseo, Livingston county, N. Y., of the second part, witnesseth: That the parties hereto, in consideration of the mutual covenants and agreements hereinafter expressed, and the sum of one dollar by each to the other in hand paid, receipt whereof is hereby acknowledged, have agreed and do hereby agree as follows: First The party of the first part agrees to clear out and maintain the State Channel, from the spillway as now built on the abandoned Genesee Valley Canal, near to and adjoining the lands of the party of the second part in the town of Leicester, Livingston county, N. Y., just north of said spillway, to Baird’s creek. Second. The party of the first part also agrees to keep up and maintain a channel, in the bed of said abandoned canal, from said spillway to Baird’s creek. Third. It is mutually understood and agreed that the elevation of the top of said spillway shall be maintained at its present elevation, being the elevation agreed upon by said party of the second part and E. A. Fisher, Esq., the engineer of the party of the first part.» Fourth. The party of the first part also, agrees to keep and maintain, on top of said spillway, flash boards twelve inches high, to be removed only in case of extreme high water. Fifth. The party of the second part agrees that the party of the first part may put in, keep, and maintain a spillway of the height aforesaid, and of such length as the party of the first part may deem necessary, and during times of high water .may allow the water to flow freely over said spillway. The party of the second part, *fart*himself, his heirs, executors, administrators, and assigns, hereby releases the party of the first part, its successors and assigns, of and from all damages, claim, for damages, cause of action, and liability by reason of any flowing of the lands of the party of the second part by reason of the use as aforesaid of said spillway-in times of high water, or for any claims heretofore existing. “J n witness whereof, the party of the first part has caused its corporate seal to be hereunto affixed, duly attested, and these presents to be signed by its president, and the party of the second part has hereunto set his hand and seal, the day and year first above written.

“Western New York & Pennsylvania Railroad Co. [Seal.]

“By C. H. Allen, President

“Chas. Jones. [Seal.]

“Attest:

“J. R. Trimble, Secretary.”

April 1, 1893, the defendant was appointed the receiver of the Western New York & Pennsylvania Railroad Company. In August, 1893, a portion of the plaint-tiff’s farm was flooded, injuring the crops growing thereon to the extent off $187.43, as found by the jury. It is alleged in the complaint that this injury was caused by the failure of the defendant to perform the covenants contained in the first, second, and fourth divisions of said contract.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, GREEN, and WARD, JJ.

J. B. Adams, for plaintiff.

John R. Strang, for defendant.

FOLLETT, J.

On the trial it appeared that the principal part of the damages arose from the substantial destruction of sweet corn growing on 18 acres of the plaintiff’s farm, and of wheat straw grown on 6 acres and stacked thereon. It appears that George B. Daley raised these crops on an agreement with the plaintiff that *580each was to have one-half of the price received for the sweet corn, which had been contracted to be sold, and that each was to have one-half of the straw. The court instructed the jury that, in case they found the plaintiff was entitled to a verdict, he was entitled to recover all the damages caused to his land and one-half of the damages done to the crops. It is now insisted, in behalf of the defendant, that the court should have held that the plaintiff was not entitled to recover any part of. the damages done to the crops because of the failure to join Daley as a party plaintiff. The defendant did not raise this question by his answer, nor did he raise it by a motion for a nonsuit; and it was raised only by a request to charge .that the plaintiff was not entitled to recover for the damages to the crops of which he and Daley were tenants in common. The defendant, not having taken this objection by Ms answer, has waived it. Code Civ. Proc. §§ 488, 499. A defendant cannot wait until the close of the evidence, and then successful^ raise the objection of the nonjoinder of a party plaintiff.

The plaintiff’s' farm is west of the Genesee river, which flows northerly through the town - of Leicester. The railroad is on the east bank of the abandoned canal, and some distance west of the farm. In the vicinity of this farm there are at least three streams, which rise on'the highland west of the railroad and flow easterly, the waters ultimately reacMng the Genesee river. The largest of these streams, Baird’s creek, is of considerable size, and several hundred feet north of the plaintiff’s farm, and empties directly into the Genesee river. The canal was carried over this creek by an aqueduct, which was removed after the canal was abandoned, and a railroad bridge was built in its place. Between 1838 and 1840 the state constructed a channel on the east side of the canal, which received the water carried under it by culverts, and was discharged into Baird’s creek. In the case this channel is designated as the “State Channel” and the” “State Ditch.” For some distance south of the place where the spillway now is, the State Channel is parallel ■with and just east of the east bank of the abandoned canal, but at the spillway it diverges easterly, extending through the lands of George B. Daley, then diverges northerly, and extends through the farm of the plaintiff and the farm of another person, and discharges into Baird’s creek. Since the removal of the aqueduct over Baird’s creek, the waters from the western - watershed and some of the smaller streams have been permitted to flow directly into the prism of the old canal, and, running northerly, have discharged into Baird’s creek at the place where the aqueduct stood. After the railroad was built, and before contracting with the plaintiff, it constructed a spillway through the east bank of the abandoned canal, and under its track, so that, when the prism Of the canal was filled with water as Mgh as the top of the spillway, it would flow over the spillway into the State Channel, and through it to Baird’s creek. Thus there were two channels by which the waters from the high land west of the railroad, were-carried into Baird’s creek, protecting the farms *581lying east of the railroad from damages by floods. By the construction of the spillway a larger quantity of water was discharged into the State Channel than before, more than it was capable of containing, and resulted in damaging the plaintiff’s farm. Such was the situation before the contract was entered into, and by reason of these conditions the contract was made.

The plaintiff asserts that defendant failed to clear out and maintain the State Channel between the spillway and Baird’s creek, and neglected to maintain a channel in the prism of the abandoned canal from the spillway to Baird’s creek, and that, by reason thereof, the flood in August, 1893, instead of being discharged through the prism of the canal and through the State Channel into Baird’s creek, overflowed the channel, and flooded the plaintiff’s farm. The defendant insisted that the plaintiff’s farm was flooded by the high water of the Genesee river and of Baird’s creek, whicji backed water into the channel, and caused it to overflow.

Considerable evidence was given showing the fall in the prism of the canal between the spillway and Baird’s creek, and the fall between the spillway and Baird’s creek by way of the State Channel. The plaintiff gave evidence showing that the prism of the canal and the State Channel had become partially filled with silt, which greatly diminished the capacity of both. Under the first clause of the contract the defendant was bound to clear out and maintain the State Channel from the spillway to Baird’s creek, so it should have its original capacity. By the second clause of the contract the defendant was bound to maintain a channel, in the prism of the abandoned canal, from the spillway to Baird’s creek, of its original capacity. Had the railroad performed the obligations imposed upon it by the first four clauses of the contract, it would be exempted by the fifth clause from liability for damages occasioned by high water. Whether the defendant performed its covenants was a question of fact for the jury, and so was the question whether the failure, if failure there ■was, was the proximate cause of flooding the plaintiff’s farm. The rights of the litigants being dependent upon the determination of these issues of fact, it was not error for the court to deny the defendant’s motion to nonsuit.

The defendant insists that errors were committed in the reception of testimony. In April, 1895, a survey of the prism of the canal and of the State Channel was made by an engineer, who was called as a witness by the plaintiff, and permitted to testify, against the objection of the defendant, that the bottom of the canal and the bottom of the channel were about six feet wide. It was objected that it was incompetent to allow the plaintiff to show the capacity of the canal and of the State Channel a year and a half after the flood. The answer to this is that the next witness called by the plaintiff testified that he had lived near and had been acquainted with the canal and channel since 1873, and that their conditions in August, 1893, were the same as when the engineer made: the survey. There was no evidence that the conditions of the canal and channel had *582«hanged -since August, 1893, and April, 1895. The reception of this evidence was not error.

The plaintiff testified that he had been acquainted with the canal since it was built, and with the channel since it was built, in 1838 and 1840, and was allowed to testify, over the defendant’s objection, that the channel was between 20 and 24 feet wide on the bottom, and between 24 and 30 feet wide at the top, that it averaged 4 to 6 feet in depth, and that, in 1868, it was cleaned out by the state from the point where the spillway now is to Baird’s creek, so that its capacity was about the same as it was when constructed. Under the first clause in the contract the defendant was bound to clear out and maintain the State Channel from the spillway to Baird’s creek, so that it should have the capacity which it had when maintained by the state, and it was not error to permit the plaintiff to testify t® its capacity while maintained by the state. A like question is presented by an exception at folio 199, and is subject to the same principle controlling the exception at folio 128, and last discussed.

The plaintiff was allowed to show the value of the straw destroyed. The defendant objected that the evidence was incompetent, because the straw was owned by the plaintiff and Daley as tenants in common. This objection was overruled. The defendant not having raised the objection by answer of the nonjoinder of Daley, and the court holding that the plaintiff could recover for only one-half of the value of the crops, the defendant was not injured by this ruling.

The foregoing exceptions to the admission of evidence are the only ones relied on by the defendant as grounds for a new trial. The exceptions to the charge remain to be considered.

The court submitted the construction of the contract to the jury as a question of fact. To this the defendant excepted, and the ruling of the court is urged as a ground for a new trial. The contract was negotiated on the part of the railroad by Edwin A. Fisher, its engineer, who was called as a witness for the defendant, and permitted, without objection, to give the conversations with the plaintiff preceding the execution of the contract, and describe the conditions which existed before the contract was made, and to state why it was entered into. After the defendant rested, the plaintiff was recalled, and testified in his own behalf as to the conditions existing when the contract was made, and previous thereto, and what was said between him and Fisher while settling the terms of the contract. This evidence was admitted without objection. Each side having given testimony to show the intent of the parties, it was not error to submit their intent as a question of fact to the jury.

For another reason, the submission of the question was not error. The construction of the contract, had no oral evidence been given bearing on it, was a question of law for the court; but, its construction having been submitted to the jury, and by it rightly construed, the submission is not an error which prejudiced the defendant, and is not a ground for reversing the judgment. People v. O’Neil, 49 Hun, 422, 4 N. Y. Supp. 119, affirmed, 112 N. Y. 355, 19 N. E. 796; *583Ming v. Corbin, 68 Hun, 161, 22 N. Y. Supp. 647, affirmed, 142 N. Y. 334, 37 N. E. 105; Whitney v. McLain, 4 App. Div. 449, 38 *N.*Y. Supp. 793. In Brady v. Cassidy, 104 N. Y. 147, 10 N. E. 131, the jury erroneously construed the contract, which was an error of law, and of the same effect as though it had been erroneously construed by the court, and for this reason the judgment was reversed.

The defendant requested the court to charge that, if the jury found the damage to plaintiff’s land and crops was caused by extreme high water flowing from the spillway,, the plaintiff could not recover, which was refused, and the defendant excepted. Whether the defendant was liable depended upon the question whether the damage occasioned by the high water resulted from the defendant’s failure to clean out and maintain the prism of the canal and the State Channel, as it had covenanted to do; and it was not error for the court to refuse to charge, as a matter of law, that the plaintiff could not recover for damages caused by extreme high water. The covenants to be performed by the railroad were executory, and if by its failure, or by the failure of its receiver, to perform those covenants, the plaintiff was damaged, the defendant was liable. In 1892 Austin W. Wheelock, under the employment of the railroad, plowed and cleared out the prism of the canal; and the court charged that if, in attempting to clear it out, the loosened earth was left so that it was washed into and deposited in Baird’s creek, thus raising the bed of the creek, and causing the water to flow over the prism of the canal at the spillway, the plaintiff had not released, by the contract, his claims for such damages. To this the defendant excepted. There certainly was no error in this instruction. If the damages were caused by the nonperformance, or by the negligent performance, by the defendant, of its covenants, the contract was not a bar to the recovery of damages by the plaintiff.

All the instructions and refusals to instruct the jury to which the defendant excepted have been referred to, but no error is found calling for a new trial.

The defendant’s motion for a new trial is denied, and a judgment ordered on the verdict for the plaintiff, with costs. All concur.