The respondent admits in argument here that the action is not “on a warranty, express or implied, nor an action ex contractu,” nor “upon misrepresentation,” but is.in tort. The supposed tort consists only in the alleged fact that the cellar which was demised to the plaintiffs was imperfectly and defectively constructed, so that, as the result of a heavy rainstorm, conjointly with a high tide in the bay, the water was backed up in the main sewer in California street, and was forced under the sidewalk and into the cellar. The damage did not result from any affirmative wrong done by the defendant, or neglect of duty on his part, for which he can be held responsible in this action.

The plaintiffs should have been nonsuited on the fourth ground stated by the defendant in his motion for a nonsuit.

Judgment and order denying a new trial reversed, and cause remanded, with directions to nonsuit the plaintiffs.