Burnett v. Mayor , 36 A.D. 458 ( 1899 )

Goodrich, P. J.:

The plaintiff was the owner of two houses on the easterly side of Vanderbilt avenue, about one hundred and thirty-eight feet north of One Hundred, and Seventy-seventh ¡street, in the borough of Manhattan, and sues to recover for damages occasioned to her'property by an overflow of water from the sewer in One Hundred and Seventy-seventh street, opposite the southerly side- of the plaintiff’s premises. There was a drain oii the north side of One Hundred- and Seventy-seventh street, extending for several blocks and connected with a catch basin at a point about one hundred and twenty-five feet east of Vanderbilt avenue and with a receiving basin on the northeasterly corner of Vanderbilt avenue and One Hundred and Seventy-seventh street. This drain was of wood and about fourteen by twenty-two inches in size. It was one and one-half to two feet below the surface, and emptied into a sewer which ran down Vanderbilt avenue to One Hundred and Seventy-sixth street. There was evidence tending to show that although the drain was intended merely tó carry off surface water there were connections for sewage between it and houses on both sides of One Hundred and Seventy-seventh street, between Vanderbilt avenue and Third avenue, the latter being three blocks distant, and that on September 18, • 1894, after a rain storm, the cellars of the plaintiff’s houses were filled with water, water closet filth and refuse, all of which resulted from an overflow of the receiving basin and the catch basin. There had been a similar overflow into the plaintiff’s premises in 1889.

At the close of the evidence on both sides the court dismissed the complaint upon the ground that the plaintiff had failed to prove a cause, of action against the defendant, and from "the judgment entered thereon the plaintiff appeals.

In Quill v. The Mayor, etc. (post, p. 476), Mr. Justice Cullen" writing, it was held that where a duty imposed upon a municipality arises from the grant of a special power to be exercised for the benefit of its inhabitants the municipality is liable for the torts of its officers and servants, and that a failure 'to keep sewers within its territory sáfe falls within this category. (Citing Lloyd v. The Mayor, 5 N. Y. 369. See, also, Seifert v. The City of Brooklyn, 101 id. 136.)

Under these decisions we are constrained to hold that the evidence required the court to submit to the jury the question whether the overflow upon the plaintiff’s premises was caused by an improper construction or maintenance of the drain and basins.

The judgment must be reversed and a new trial granted.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.