Opinion
November 11, 1936.
Appeal from County Court, Rensselaer County.
Present — Hill, P.J., Rhodes, McNamee, Crapser and Bliss, JJ.
Plaintiff was injured on March 17, 1934, by falling on an icy sidewalk on the east side of Third street, Troy, N.Y., in front of defendant's premises. Third street runs north and south and defendant's premises are on the east side thereof where defendant has a school and school buildings. The complaint alleges that the defendant maintained a concrete walk leading from the east sidewalk of Third street to the school yard and buildings located in the rear of said premises; that the said concrete walk slopes or pitches toward said east sidewalk in a negligent manner so that the rainfall, water and accumulated snow from the premises and roofs of the buildings which are not equipped with proper gutters and drains were negligently suffered to be cast and discharged in large quantities from said roofs and premises over said concrete walk onto said sidewalk, by reason of all of which in freezing temperatures, and particularly on said date and for several days prior thereto, a large quantity of ice formed and accumulated upon said sidewalk causing the same to be dangerous and unsafe. Defendant's premises slope downward in a westerly direction to the sidewalk in question, and the surface of the concrete walk which leads from defendant's premises to the sidewalk follows the contour and slope of the land and is slightly higher than the lawn through which the walk extends. The court below, in setting aside the verdict for the plaintiff, held that no liability existed on the part of the defendant for the reason that the walk in question did not constitute a ditch or gutter, and that no action lies for damages resulting from the flow of water over the surface of defendant's land to and upon the sidewalk, citing in support of his conclusions: City of Rochester v. Campbell ( 123 N.Y. 405); Dwyer v. Woollard ( 205 App. Div. 546); Moore v. Gadsden ( 87 N.Y. 84; 93 id. 12); Brown v. Wysong ( 1 App. Div. 424); Stapleton v. Church of the Pilgrims, etc. (242 id. 71). (See, also, Bennett v. Cupina, 253 N.Y. 436, and cases therein cited.) Order and judgment unanimously affirmed, with costs.