Durgin

This was an action to recover damages for injury to plaintiff’s merchandise, caused by the negligence of defendants in flooding a cellar wherein the -same was stored.

At the trial, which was before the court without a jury, the defendant Neal, the owner of the premises upon which her co-defendants were erecting a building for her, and who does not appear to have either demurred *597 or answered, moved for and obtained a nonsuit. The trial then proceeded against the defendants McNally and Young, and resulted in a judgment against them for $321 damages and $53.15 costs. From that judgment McNally and Young appeal.

The first point urged by them as a reason why the judgment should not stand is, that the court erred in overruling their general demurrer to the complaint, because the second allegation thereof fails to state facts showing any negligent or unlawful acts upon their part.

The portion of the complaint referred to, shorn of its verbiage, in substance states that in January, 1888, the defendants dug and excavated the street and sidewalk of the public street in front of and adjoining the premises occupied by plaintiff, in such a manner as to allow the rain and water to…