Smith v. City of Auburn
Appellate Division of the Supreme Court of the State of New York
■ Appeal by the defendant, The City of Auburn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 25tli day of April, 1903, upon the report of a referee, enjoining and restraining the defendant from discharging sewage and surface water from its streets into a natural watercourse flowing across and through the plaintiff’s land, and awarding the plaintiff the sum of $1,840 damages.
1Opinion of the Court
Hiscock, J.:
We think the judgment appealed from must be reversed and a new trial granted because the action was largely tried and decided upon a theory different from that set forth and outlined in plaintiff’s complaint. In order to appreciate the variance which we deem to exist it will be essential to review some of the leading features of the case.
As indicated by the nature of the judgment already referred to, it is claimed by plaintiff that defendant has been guilty of unlaw*397fully causing her premises in the city of Auburn to be flooded with water and sewage. There seems to. be no question…
2Cited by2 opinions
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