dissent">O’Brien, J. (dissenting):

It has been repeatedly held where injury is caused by water overflowing another’s premises that a distinction is to be noted between cases where the defendant has constructed that which causes the damage and where he has come into possession of premises upon which it exists and thereafter maintains it. In other words, where one constructs the thing which does the injury, his knowledge of its existence will be imputed, but the same rule does not prevail with respect to one who merely uses what he receives as an appurtenance to the premises of which he enters into possession. In the latter case it is necessary either to prove knowledge of the existence of that which produces the injury or to prove notice, actual or constructive, before one can be charged with liability merely because he maintains it on his premises. (Ahern v. Steele, 115 N. Y. 203; Conhocton Stone Road v. B., N. Y. & E. R. R. Co., 51 id. 573; Schreiber v. Driving Club of New York, 17 Misc. Rep. 131.) The case first cited (Ahern v. Steele, supra)fully states the law and therein the authorities on the subject were collated, and the court said: “ The owner is responsible if he creates a nuisance and maintains it; if he creates a nuisance and then demises the land with the nuisance thereon although he is out of occupation ; if the nuisance was erected on the land by a prior owner or by a stranger and he knowingly maintains it; if he has demised premises and covenanted to keep them in repair and omits to repair and thus they become a nuisance; if he demises premises to be used as a nuisance or for a business or in a .way so that they will necessarily become a nuisance. In all such cases I believe there is now no dispute that the owner would be liable. * * * A *428grantee or devisee of premises upon which there is a nuisance at the time the title passes is not responsible for the nuisance until he has had notice thereof and in some cases until he has been requested to abate the same. The authorities to this effect are so numerous and uniform that the rule which they establish ought no longer to be open to question.” And in Conhocton Stone Road v. B., N. Y. & E. R. R. Co. (supra) it was held, as said in the head note, that “ In order to maintain an action for damages resulting from a nuisance upon defendant’s land, where such nuisance was erected by a previous owner before conveyance to defendant, it is necessary to show that before the commencement of the action he had notice or knowledge of the existence of the nuisance.”

The rule which has been formulated by the majority of the court may be more salutary and more just, but I do not feel at liberty, in view of the number of cases in which a different rule has been held, to divert from what I regard as the settled law. In recognition, therefore, of the principle of stare decisis, I dissent, and think that the judgment appealed from should be reversed and a new trial granted.

Laughlin, J., concurred.

Judgment affirmed, with costs.

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