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Supreme Court, March, 1899.

course, (4) that the plaintiff has not voluntarily cohabited with the defendant since such discovery; and "the complaint containing such averments be verified by the oath of plaintiff ", the judgment shall not be rendered for the plaintiff "until the plaintiff's affidavit be produced stating the above facts." Thus, under the rule, if these things be not alleged in a verified complaint, the way to do is to present an affidavit of them. In some way, however, it has come about that attorneys persist in introducing oral testimony of them; and that even though the verified complaint alleges them. Some attorneys even insist on asking the formal question whether five years have elapsed since the plaintiff discovered the adultery, when the allegation and the proof are that it was committed on a named date within the five years, or even within a few weeks or months. There seems to be a general notion that the things mentioned in Rule 72 are for the plaintiff to allege and prove as part of the cause of action, whereas they are no part of the cause of action, but defenses to be pleaded by the defendant. Rule 72 was made for cases of default only; and it is in effect that in anticipation of a default the plaintiff may aver the said things in a verified complaint, in lieu of presenting a separate affidavit of their truth. There is no rule for oral proof of them, and if the bar would conform to the rule it would be appreciated by the court, for the profession is a learned one.

Judgment for the plaintiff.

THEODORE GOODNESS, Plaintiff, v. THE METROPOLITAN STREET RAILWAY COMPANY, Defendant.

(Supreme Court, Kings Special Term, March, 1899.)

Practice - When plaintiff will not be required, by motion, to state his residence by street and number.

A motion by a defendant, a corporation, to require the plaintiff to furnish it his place of residence by street and number will be denied where it does not appear that the plaintiff's attorney has, on request, refused to furnish these particulars.

MOTION to require the plaintiff to furnish his place of residence by street and number to the defendant.

Supreme Court, March, 1899.

[Vol. 27.

Henry A. Robinson for motion.

Frederick G. Wetterau opposed.

GAYNOR, J.: The court should not be bothered with a motion. like this except upon proof that a request has been made to the attorney for the opposite side for the information and refused. In this case the order to show cause seems to have been obtained only as a subterfuge to get an extension of time to answer.

The motion is denied, with $10 costs and the extension of time to answer is vacated.

BENJAMIN F. FORBELL, Plaintiff, v. THE CITY OF NEW YORK, Defendant.

(Supreme Court, Kings Special Term, March, 1899.)

Municipal corporations — Liable for lowering the underground water level of the land of an adjacent owner.

A municipal corporation is liable in damages to a land owner where the underground water level of his land is lowered several feet by the operation of a pumping station, connected with the city water works system, and which so dried up the land that the owner could not grow on it crops to which it was particularly adapted and from which he had previously made a large profit.

ACTION for an injunction to restrain defendant from operating its pumping station and driven wells at the Spring Creek pumping station of the defendant's water works in the borough of Queens, and for damages for loss of crops by reason of the drying up of plaintiff's land.

Charles Coleman Miller, for plaintiff.

R. Percy Chittenden, for defendant.

WILMOT M. SMITH, J. The evidence in this case satisfies me beyond a reasonable doubt that the operation of the pumping at the

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Supreme Court, March, 1899.

Spring Creek pumping station lowered the water level under the land occupied by the plaintiff several feet, and that the direct effect thereof was to prevent the plaintiff from growing upon his land the crops to which it was peculiarly adapted and from which he had previously made a large profit.

The substantial question to be decided is whether the defendant is legally responsible for the loss inflicted upon the plaintiff by the operation of these pumping stations. Previous to the decision of the Appellate Division of the Supreme Court in the second judicial department in the case of Smith v. City of Brooklyn, 18 App. Div. 340, the tendency of the decision of the courts of this state was against the contention of the plaintiff in this case and in favor of the proposition that an action would not lie against the owner of the land who intercepted or diverted underground currents of water to the injury of another. In the Smith case the operation of a pumping station lowered the spring level of the surrounding country and dried up a stream and pond belonging to the plaintiff. The court held the city liable for the damages. The court in its decision distinguished the case from other cases previously decided in this state on the ground that in the case at bar the cutting off of the source of supply of the plaintiff's stream and pond, was not done in the exercise of the legal right of the defendant to improve its land or in connection with the enjoyment of the land itself, but for the sole purpose of gathering and conveying the water to a distant place for the use of the inhabitants of the city.

The reasoning of the court in the case so appeals to a sound judgment and keen moral sense as to be unanswerable.

The defendant seeks to distinguish this case from the Smith case, because in the Smith case a running stream and pond were dried up by the operation of the pumping station, and in this case the underground water level was lowered upon the plaintiff's land. In my judgment there is no difference in principle between the two cases. The underground water on plaintiff's land was a part of his land. He had a property right in it. Its use was indispensable to the enjoyment of his land, and he was deprived of the water as effectively by means of these pumps as he would have been by a direct entrance upon the land itself. The property right in waters which flow upon the surface of the ground is no more sacred than the property rights in waters which flow underground. There can be no escape from the conclusion that the acts of the defendant

Supreme Court, December, 1898.

[Vol. 27.

were injurious to the plaintiff, and that an action will lie for the damages he has sustained by reason thereof.

I think the plaintiff has made out a cause of action for the equitable relief demanded in his complaint. Upon the question of damages, after making such deductions from the plaintiff's claim as may be properly attributable to other causes than the wrongful acts of the defendant, I assess his damages at the sum of $6,000 and I hereby direct judgment against defendant in favor of the plaintiff, enjoining the operation of the pumping stations, and for the sum of $6,000 for his damages, with the costs of the action. Decision and judgment to be settled upon two days' notice.

Ordered accordingly.

EDWARD V. B. KISSAM, Plaintiff, v. JOHN W. BREMMERMAN, Defendant.*

66

(Supreme Court, Kings Special Term, December, 1898.)

Trial - An issue of law is triable in any county of the judicial district of the county where the action is triable — Code Civ. Pro., § 990. Under section 990 of the Code of Civil Procedure an issue of law may be tried" in any county within the judicial district embracing the county wherein the action is triable, and hence, although the venue of an action is laid in Queens county, a trial at the Kings County Special Term of a demurrer to the answer is legal and a judgment thereon for the plaintiff, taken on the defendant's default, cannot be set aside for irregularity.

MOTION to vacate a judgment.

Charles Bradshaw, for plaintiff.

Charles S. Simpkins, for defendant.

FREDERIC A. WARD, J. This application to vacate a judgment presents a question whether an issue of law can be regularly noticed and brought to trial in a county other than that designated in the complaint for the trial of the action.

The place of trial indicated in the complaint is Queens county.

*Received too late for insertion in proper place. [Reporter.

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Supreme Court, December, 1898.

The plaintiff demurred to the answer and noticed the issue raised by the demurrer for trial at the Kings County Special Term. The defendant disregarded this notice and judgment was taken against him.

Whether the plaintiff's procedure was regular, or not, depends upon the construction to be given to section 990 of the Code of Civil Procedure which reads as follows: "An issue of law may be tried in any county within the judicial district embracing the county wherein the action is triable," etc. This provision was not contained in the Code of Procedure, but is new and its meaning does not seem heretofore to have been called in question.

Under the practice before the Code, issues of law were brought to trial in the county designated by the court, which was not necessarily that in which the venue of the action was laid. Laws of 1847, chap. 280, § 46.

By the Code of 1851 it was expressly provided that "issues of law must be tried only at the General Term, unless the court order the trial to be had at Special Term ", but in the following year issues of law were first made triable at Special Term, and this practice has ever since prevailed, the place fixed for the trial of the action being regarded as the place of trial of any issue of law raised therein by the demurrer.

Under these provisions, it was held in Christy v. Kiersted, 47 How. Pr. 467, that an issue of law must be tried in the county designated in the complaint and that there was no distinction in this regard between issues of law and issues of fact; whereas it was intimated in Ward v. Davis, 6 How. Pr. 274, that under the Code of 1849 demurrers might be noticed like motions for hearing at any Special Term within the judicial district embracing the county where the action was triable.

All the provisions of law which fix the locality of actions or relate to changes of the place of trial are intended to promote the convenience of parties, or their witnesses, or to insure an impartial trial of issues of fact, and manifestly have no application to the argument of a demurrer, and by placing in section 990 the expression "in any county within the judicial district" in antithesis with the "county where the action is triable ", the legislature made clear the purpose to remove from the trial of issues of law the restrictions of the latter, and to restore the freedom of the earlier practice, and thus to secure the speedy decision of demurrers, which often, especially in counties in the country districts where there are