97 N.Y.S. 833 | N.Y. App. Div. | 1906
The plaintiffs have recovered a judgment for-injuries to property ' .resulting from the flooding of their cellar caused by water backing up from the sewer through the house connections and into the cel
Different conditions require the application of different principles in these so-called sewer cases, and the following propositions may be stated as firmly established by authority: The duty of providing sewerage and drainage is yMfflsi-judicial, and in determining the necessity, location, capacity, etc., the officers upon whom the duty is imposed are required to exercise judgment and discretion, and no action lies at the instance of an individual for damages based upon either a failure to act or an error of judgment in acting (Wilson v. Mayor, etc., of New York, 1 Den. 595; Mills v. City of Brooklyn, 32 N. Y. 489; Lynch v. Mayor, (76 id. 60); this principle, however, cannot be extended so as to grant immunity to municipalities for acts which result in the invasion of private property or
Obviously under normal conditions-there will bedtimes when some backing up of water in the sewers will occur, and the mere fact that an overflow occurs from a drain not equipped with a proper trap, on nearly the same level as the s'ewer, during an unusual rain storm, is not sufficient to cast the burden on the defendant of disproving any negligence on its part; instead it- tends to establish negligence on the part of the plaintiffs in thus constructing a drain. We may assume that the defendant is required to exercise ordinary care to guard against an overflow from sewers through house connections, and yet the law is not so unreasonáble as to impose a liability in a case disclosing fault on the part of the plaintiffs but none on the part of the defendant. >
-The judgment of the Municipal Court should be reversed and- a new trial ordered, costs to abide the event. '
^Hirschberg, P. J., Jenks, Hooker and Rich, JJ.-, concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.