Smith v. . Mayor , 66 N.Y. 295 ( 1876 )

The defendants can only be made responsible to the plaintiff for the damage sustained by him by reason of the overflow of the sewer into his cellar and upon his premises, upon proof of some fault or neglect on their part, either in the construction of the sewer or in keeping it in proper repair. It is claimed that there is some evidence that the sewer was not properly graded, but the evidence is very slight, and the referee has not found the fact, nor was he requested to find that the sewer was not of proper dimensions, well and properly constructed and upon the right grade. We are not at liberty to consider any facts except those found by him. It is found upon sufficient evidence that the overflow was caused by a stoppage of the sewer with sand, dirt and refuse matter washed in from the street, and that at or just before the flooding of the plaintiff's premises, there was an unusually heavy shower of rain. There is no proof of any obstruction before that time. There being no fault in the construction of the sewer, causing the overflow, it was incumbent upon the plaintiff to show a neglect by the defendants to remove the obstruction after notice of its existence, or some omission of duty on the part of the city officers in looking after it and seeing that no obstruction occurred. There was no evidence and there is no finding that the sewer was liable to become obstructed under ordinary circumstances, so as to require the watch and care of the officials to prevent its becoming filled and choked with the wash of the street, or that it had been obstructed for any time and under circumstances from which it might be assumed that the officers of the city did know, or ought to have known the fact. The city does not insure the citizen against damage from works of its construction, but is only liable, as other proprietors, for negligence or willful misconduct. The principles upon which municipal corporations are held liable for damages occasioned by defects in streets and sewers and other public works, are well settled by numerous cases, and the liability is made to rest, in any case, upon some neglect or omission of duty. (Barton v. Syracuse, 37 Barb., 292; S.C., 36 N.Y., 54; Griffin v. Mayor, etc., of New York, 5 Seld., 456; McCarthy v. Syracuse, 46 N.Y., 194; Nims v.Troy, 59 id., 500.)

The plaintiff failed to make a case entitling him to recovery, and the judgment must be affirmed.

All concur.

Judgment affirmed.