authority to issue an execution to sell the title and interest possessed by the judgment debtor before that time, and, hence, that the execution, and the proceedings of the sheriff, by which he advertised to sell the interest which the plaintiff had in the property more than 10 years before the time of the sale, were irregular and improper. We think that an execution issued under section 1252 should correctly state the interest which the party issuing the execution is entitled to have sold, and that, as the execution in this case, and the proceedings under it, failed to do so, they were properly set aside. Hansee v. Fiero, 56 Hun, 463, 10 N. Y. Supp. 494; Floyd v. Clark, (Com. Pl. N. Y.) 17 N. Y. Supp. 848. We find nothing in sections 1366, 1368, and 1369 of the Code of Civil Procedure which requires an execution issued under the provisions of section 1252 to be in the form of that issued in this case, or that requires it to be incorrect, and contrary to the provisions of the latter section. Section 1369 provides that an execution against property must, "except where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment-debtor; and, if suffi cient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the county clerk's office of the county, or at any time thereafter." Thus we see that cases where provision is otherwise made by law are excepted from the provisions of that section, and, when we refer to section 1252, we find that, where an execution is issued and levied upon real property under its provisions, the judgment binds the title thus levied upon only from the time of recording and indexing the notice, and, consequently, the only interest or title that can be sold under such an execution is that of the judg ment debtor at the time of recording and indexing the notice. That being the only interest which can be sold, where the judg ment has ceased to be a lien upon the property, we think it follows that the provisions of section 1369 do not control as to the form of the execution to be issued in such a case, but that the execution, and proceedings under it, should be made to conform to the provisions of section 1252, and accurately and correctly describe the interest of the judgment debtor that was levied upon and advertised for sale. Any other course of procedure would lead to confusion as to the rights of the purchasers, other judg ment debtors, or lienors, would jeopardize the rights of the persons interested in the land, provoke unnecessary litigation, and render the title to the property sold doubtful and uncertain. We find no authority, statutory or otherwise, that requires us to hold a doctrine which would be followed by such unfortunate consequences. We think the order should be affirmed. Order affirmed, with $10 costs and disbursements. HARDIN, P. J., concurred. MERWIN, J., (dissenting.) It seems to me that the execution should not have been set aside by the special term. At most, it should have been limited to the lien acquired upon filing the notice under section 1252. The plaintiff ought to be permitted to retain the benefit of that lien. (75 Hun, 479.) MUNDY v. NEW YORK, L. E. & W. R. CO. (Supreme Court, General Term, Fourth Department. February 15, 1894.) 1. WATERS-OBSTRUCTION BY EMBANKMENT-EXTRAORDINARY FLOOD. A flood will not be held, as a matter of law, to have been so extraordinary as to relieve defendant railroad company from liability for the overflow of plaintiff's land because the culvert in defendant's embankment was insufficient to carry off all the water, where it appears that several similar floods had occurred in previous years, though none was as great as the one in question. 2. SAME RIGHT TO CONSTRUCT EMBANKMENT. The mere fact that a railroad embankment was constructed on the land of the company does not limit its liability for interrupting the flow of surface water to such interruption alone as may result from negligence in the construction of the embankment. Appeal from circuit court, Chemung county. Action by Nicholas S. Mundy against the New York, Lake Erie & Western Railroad Company. From a judgment entered on a verdict in favor of plaintiff for $1,400, and from an order denying a motion for a new trial on a case and exceptions, defendant appeals. Affirmed. Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ. MERWIN, J. This action is brought to recover damages sustained by the plaintiff by reason of a flood occurring on the 1st day of June, 1889. At that date, and for many years prior thereto, the plaintiff owned a farm situated on the northerly side of Chemung river, in the town of Big Flats, in the county of Chemung. This farm extended from the river northerly across the valley a distance of about a mile. Through the farm, and along the valley, and some distance from the river, the railroad of the defendant passed in a direction easterly and westerly. The track was laid upon an embankment that was above the surface of the ground, and extended, substantially straight, westerly to East Corning station, a distance from plaintiff's farm of about a mile and a half. The general direction of the river in that locality was from the west easterly. At East Corning station it came from the southwest, and ran near to the railroad embankment. It there made a sharp curve to the east and south, and thence it ran easterly beyond plaintiff's farm. The railroad was originally constructed by the New York & Erie Railroad Company, in 1849. In 1861 it passed into the hands of the Erie Railway Company, and in or about April, 1878, the defendant became the owner. In the complaint it is alleged that the embankment which the defendant maintained upon its lands in the vicinity of the farm of plaintiff was an obstruction to the course of the waters flowing nat urally in and from the Chemung river in times of high water or freshets; that the Chemung river is, and always has been, subject to freshets and to rise in the waters in the vicinity of plaintiff's farm, and prior to the building of such embankment such waters passed west and north of plaintiff's farm; that some distance west of plaintiff's farm the predecessors of defendant placed in the embankment a narrow and insufficient culvert, which was wholly insufficient for the passage of the waters of the river in times of floods or freshets, and that this was maintained by the defendant with notice that it was insufficient, and that by reason thereof the waters would be liable to pass along down on the southerly side of the embankment to the plaintiff's farm and to his injury; that in June, 1889, at the time of a rise and freshet in the waters of the river, the waters of the river overflowed its banks, and came against the embankment, and then, by reason of the embankment and the insufficiency of the culvert, were turned from their natural course, and came down on the southerly side of the railroad to the plaintiff's farm, injuring the farm and the personal property thereon to the extent of $1,400; that prior to this time the plaintiff notified the defendant that the embankment and culvert were a nuisance, and liable, in time of floods, to cause him great injury. The defendant, in its answer, among other things, denied the insufficiency of the culvert, and alleged that the railroad was constructed and is maintained in a careful, skillful, and proper man ner. This From the evidence it appears that about a mile westerly of the plaintiff's farm the embankment of the railroad passed over a considerable depression in the natural surface of the ground. extended several hundred feet, the height of the embankment above the surface ranging from 10 to 4 or 5 feet. In the embankment over this depression there was a culvert 74 feet wide, with a pier in the center. This depression started at the bank of the river, near the station, at the point where the river came up and curved to the east and south. It was at the river about 40 rods wide, and extended beyond the railroad embankment northeasterly. The culvert was placed at right angles to the embankment, so that the waters as they came down the depression or channel were required to turn northwardly in order to pass through. This depression was described by several witnesses as being the flood channel or water course with well-defined banks, which at times of floods would take the overflow of the river at the curve, and carry it northeasterly beyond the locality of the railroad embankment, and thence eastwardly until it reached Big Flats or Gard ner's creek, and thence passed to the river below the plaintiff's farm. The overflow at times was said to constitute a good-sized river. At the place on the river bank where this flood channel started, for the purpose apparently of stopping to some extent the overflow at that point, a dyke or embankment along the bank of the river for about 50 rods had been constructed in 1851 by the predecessor of defendant, and another one in 1866. This, in 1886, had become dilapidated, and at that time it was that the plaintiff notified the officers of the defendant that with the dyke in that condition the culvert in the railroad embankment would not in case of flood carry off the water, but that it would be thrown by the embankment onto the lands on the south side of the track, and pass on down to the farm of plaintiff. It had done so to some ex tent at a flood in 1865, and the defendant was so informed. The flood on June 1, 1889, was an unusual one. There had been similar floods in 1865 and in 1833, but not so large. There is no question about the plaintiff's property being in fact flooded and injured, and the question is whether the defendant is responsible for the injury. The plaintiff, at the trial, claimed and gave evidence tending to show that the waters that came down upon and injured him came from the Chemung river at the curve where the dike had been placed, and then passed down in the flood channel to the railroad embankment, where, by reason of the inadequacy of the culvert in position and size to afford passageway, they were turned eastwardly, and along the south side of the railroad, and passed down to plaintiff's farm, and that, if the passageway at the culvert had been adequate, the waters would have passed off to the north and east, and his injury been avoided. The defendant claimed and gave evidence tending to show that the waters that injured plaintiff did not come from the river at the dike, and were not cast upon the plaintiff by means of the embankment or want of passageway at the culvert, but were waters that flowed over onto plaintiff from other portions of the river, and were waters that were set back by reason of the waters of the river being dammed up at a gorge about three miles below; and that the flood was so high that the plaintiff would have been overflowed just as much had there been no embankment at all over the flood channel at the culvert. Whether the claim of the plaintiff or that of the defendant was correct was, upon the evidence, a question of fact, and, in effect, was found in favor of the plaintiff. The evidence warranted the finding. The defendant, however, claims that upon the undisputed evidence the flood was so extraordinary that it should be said as matter of law that the defendant was not liable. In Mayor, etc., v. Bailey, 2 Denio, 433, 441, it was said by the chancellor that a party constructing a dam should construct it in such a manner as to resist such extraordinary floods as might have been reasonably expected occasionally to occur. This rule was approved in Gray v. Harris, 107 Mass. 492, and it was there held that it was a question for the jury whether a flood of an extraordinary character was such that it should have been anticipated and provided against. A like view is taken as applicable to a case like the present one in Railway Co. v. Ramey, 139 Ill. 9, 28 N. E. 1087; Railway Co. v. Thillman, 143 Ill. 127, 32 N. E. 529; Railway Co. v. Pomeroy, 67 Tex. 498, 3 S. W. 722; Borchardt v. Boom Co., 54 Wis. 107, 11 N. W. 440. In Hartshorn v. Chaddock, 135 N. Y. 116, 120, 31 N. E. 997, a recovery was sustained for damages from a flood occurring at the same date as in the present case, although the defendant claimed it was so extraordinary and unusual as to be deemed an act of God; it appearing that, though the freshet was unusual with respect to the volume of water, yet that similar ones, but of less power, have occurred in the past, and are liable to occur in the future. The flood of 1889 was higher than ever before, but similar ones had occurred in 1833 and in 1865, and numerous others not so large. It was shown that the river, for many years prior to 1889, had been subject to sudden variations and heavy rises, and there had been a steady increase in the floods, and they rose quicker in later years than formerly. We think it should not be held that the flood was so extraordinary that the defendant was relieved from all liability. It is further claimed by the defendant that it was authorized by law to construct its road upon its own land, and is not liable, under the rule laid down in Moyer v. Railroad Co., 88 N. Y. 351. In that case damages had been awarded to the plaintiff as having been caused by the raising of the bed of defendant's road. It was said that there was no proof that that cause contributed in any way to the damage; that the defendant was authorized by law to construct its road upon its own land, and, if it constructed it in a skillful and proper manner, it could not be made responsible to persons receiving incidental or consequential damages; that there was no allegation or proof that it was unskillfully or improperly done, but it was found that the embankment was built in a workmanlike and skillful manner; and the case of Bellinger v. Railroad Co., 23 N. Y. 47, was referred to as sustaining the position that the defendant was not liable for consequential damages to any persons caused by the necessary and proper elevation of its roadbed, not in a channel of a stream, but on its own land. In the Bellinger Case, which related to the same railroad as the Moyer Case, it was said that the defendant was liable only on the basis of negligence. The Bellinger Case was considered in the case of Cogswell v. Railroad Co., 103 N. Y. 10, 8 N. E. 537, and it is there said that the rul ing in the Bellinger Case was based on the fact that the company was authorized by statute to construct its road across the creek at the point where it was located, and that it, therefore, was liable only for such consequences as were attributable to a failure to exercise due care and skill in executing the statute authority. The Cogswell Case was an action for damages for a nuisance in the maintenance of an engine house, and it was held to be no defense that it was necessary for defendant to have its engine house located where it was, or that in the management thereof it exercised all practicable care. The rule was laid down that the statutory sanction which will justify an injury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury; that, where the terms of a statute giving authority to a railroad corporation are not imperative, but permissive, this does not confer license to commit nuisance, although |