Colmet Realty Corp. v. Atwell-Gustin-Morris, Inc. , 253 A.D. 842 ( 1938 )

Action for damages suffered as a consequence of the settling of plaintiff’s building, claimed to be due to the defendant corporation’s acts while constructing a subway. Judgment for defendant reversed on the law and the facts and a new trial granted, costs to abide the event. Plaintiff’s claim was that during the construction of the subway the corporate defendant created a sump to lower the ground water level or table and by its operations therein drew the ground water level or table down so as to lower the ground water level under plaintiff’s building. The claimed consequence of this was that the piles which supported a part of the plaintiff’s building suffered a diminution of their weight-bearing power, with the result that plaintiff’s building settled and property damage ensued. The trial court decided in favor of the corporate defendant. An analysis of the evidence shows that such a conclusion was contrary to the weight of evidence. The trial court’s determination seems to have resulted in whole or part from its erroneous recollection of the evidence or from the adoption of theories that had no adequate factual support. Hagarty, Carswell, Davis, Johnston and Taylor, JJ., concur.