#### Theodore Punsky, Respondent, *v.*The City of New York, Appellant.

(Nos. 1 and 2.)

Second Department,

December 30, 1908.

Trial—weight of incredible evidence not contradicted — municipal corporations — injury to property by excessive rain fall.

The court is not hound to accept testimony as true merely because there is no witness to contradict it.

Evidence in an action against a municipality to recover for alleged injuries to property caused by the flooding of the plaintiff's cellar examined, and *held,*that *559the plaintiff’s testimony as to the amount of damage, although uncontradicted, was too improbable to justify the damages awarded.

A municipality is not liable for damages caused solely by the flooding of a cellar from the natural flow of water over a street during an excessive rainfall.

Appeals by the defendant, The City of New York, from two judgments of the Municipal Court of the city of New York in favor of the plaintiff.

*James D. Bell [James T. O'Neill*with him on the brief], for the appellant.

*Benj.*Frindel, for the respondent.

Gaynor, J.:

These two actions were for damages against the city, one for flooding the plaintiff’s cellar on October 9tli, 1903, and the other on August 10th, 1904, and were tried together. The prayer for damages in each was for $500, and the amount allowed in one was $346.25 and in the other $369.75. How the plaintiff was allowed to prevail passes credulity. If everything or anything had to be believed in court simply because there is no witness to contradict it, the administration of justice would be a pitiable affair. The testimony of the plaintiff is that he was in the cork business in this cellar; he bought second hand corks of peddlers and sold them again ; it rained during the day, and the water was 1-|- feet deep on the sidewalk and overflowed into the cellar ; it was 5 feet deep in the cellar; he had four men working there ; a cask of oxalic acid was destroyed *;*how the water got into the cask is not shown ; two cork-cutting machines, worth $150 apiece, were destroyed; he paid $10 for repairs to them and then sold them for $3 for junk; how they were or could be destroyed by the water does not appear ; it was all out the second day ; 12 sets of cork knives were destroyed ; they were “ rusted and spoiled ” ; he *“*made presents of them to good friends ”; a writing desk was ruined, total loss; likewise a stove, total loss; how, appears in no case; 25 to 30 sieves to drain water from corks ruined; 100 gross of Rhine wine corks worth 65 cents a gross, injured, and sold for 8 cents a gross; 500 whiskey corks so much injured as to be a total loss ; 300 gross of amber corks worth 20 cents a gross, reduced *560to *2*cents a gross by the injury; 200 gross of quart corks reduced from 20 cents to 4 cents a gross ; 150 demijohn corks, 75 varnish can corks and a miscellaneous lot reduced in the same way; 500 gross of caps for beer bottles, a total loss ; in addition a lot of corks floated out into the street; it was “ filled with them ” ; how they got through the windows is left in doubt; whether any one closed the windows is left in doubt; whether the water in the cellar was up to the windows is left in worse doubt, although it was 1J feet deep on the sidewalk if' the plaintiff’s oath is'any good; in fact it was so deep when he got home that he could not get into the house at all; why the things, and especially the boxes of corks, were not removed when the water began to come in is left without so much as a word; how a cork can be rotted and ruined by water in 48 hours or less was left for the trial Judge to imagine and to believe as best he could ; that he did believe it is attested by the fact that the items of loss on corks were allowed; in fact, substantially everything sworn to was allowed, cask of oxalic acid, machines, knives, desk, stove, corks, caps, everything.

When the law of the case is looked into, the judgments are still more extraordinary. The evidence is that there was a downpour of rain which flooded the street. There is no evidence that the city turned the water of other localities upon this locality, through the gutters, or through sewers, and that the sewers became choked thereby, and belched, and that the collected waters of other localities were thus cast into the plaintiff’s place. For such affirmative acts of negligence the city would be liable, but for the natural flowing of the water of that locality along the street it would not be liable *(Smith*v. Mayor, 66 N. Y. 295; *Lynch*v. Mayor, 76 id, 60; *Seifert*v. *City of Brooklyn,*101 id. 136). The city should not be made the victim of such exaggerated and groundless actions as this.

The judgments should be reversed.

Woodward, Jenks, Hooker and Miller, JJ., concurred.

Judgments.of the Municipal Court reversed and new trial ordered costs to abide the event.