| N.Y. Sup. Ct. | Jul 9, 1889
The complaint in this action sets up two causes of action. In the first cause of action it is alleged that the plaintiff was the lessee of the premises known as Nos. 13 and 15 Chatham street, in the city of New York, which he occupied as a restaurant, wine and liquor saloon; that the defendant was a municipal corporation, and as such had charge of the sewers laid in and under the streets of the city of New York; that on or about the 1st of February, 1882, the defendant committed a nuisance upon the aforesaid premises by causing the refuse and contents of the sewer situated on Frankfort street in said city to be emptied thereon, and that, notwithstanding due and proper notice thereof was given to the proper officers of the defendant, the defendant continued to maintain the same from February, 1882, to October, 1883, whereby the plaintiff was damaged to the extent of $50,000. For a second cause of action the complaint makes the same allegations in regard to ownership and occupancy by the plaintiff, and that the defendant, as such municipal corporation, had charge of the sewers laid in and under the streets of the city of New York, and that it was the duty of the defendant to use reasonable care and diligence in the management and repairs of such sewers, so that the abutting owners should not be injured thereby, and that in disregard of said duty the defendant so negligently and carelessly managed
The main question submitted to the jury upon the trial was whether the overflow which came into the plaintiff’s premises resulted from the stoppage of the private drain or the public sewer in Frankfort street, and the jury were instructed that if the drain in Chatham street was obstructed, and hence arose the difficulty, the city was not responsible; whereas, if the jury found that the obstruction was in the Frankfort-Street sewer the public authorities had not performed their duty, and they became responsible for the overflow. The plaintiff sought to show that the premises Ho. 17 Chatham street, to which this drain was an appurtenance, had been conveyed by the owner thereof to the trustees of the Brooklyn bridge, and that such trustees had, by carrying into this sewer the water from the bridge, overcharged this drain, and that this was one of the causes of the overflow; claiming that as the bridge trustees were the joint agents of the two cities of Brooklyn and Hew York, and that as they held this property in trust for the beneQt of the two cities, and as the two cities were responsible forthe wrongs which these bridge trustees committed in the administration of their trust, therefore in this action the plaintiff had a right to recover the damages thereby sustained. There
Various cases are cited for the purpose of establishing the fact that it is a familiar principle that municipal corporations are responsible for all private drains or sewers of third persons in thq event of adoption, user, or dominion. But it will be found that in the leading case of Nims v. City of Troy, 59 N.Y. 500" court="NY" date_filed="1875-01-19" href="https://app.midpage.ai/document/nims-v--mayor-etc-of-the-city-of-troy-3584726?utm_source=webapp" opinion_id="3584726">59 N. Y. 500, portions of that sewer were actually constructed by the city authorities, and that it was part and parcel of the same plan, and there does not appear to have been any restriction upon the city authorities as to the manner
The authorities cited in reference to the adoption of a public street have no application. In fact there is nothing in this case going to show a public adoption, except the issuing of the permit, which, from the very circumstances attending its issue, could not have any such effect, and by the fact of the bridge trustees having used the drain in connection with the very premises to drain which it was built.
We are asked, was not the excluded testimony—namely, the proof as to the premises being conveyed to the bridge trustees—the strongest and most conclusive possible to show adoption or possession, use or control, of the Chat-ham-Street sewer by the defendant? As we have already said, that was no proof whatever of any adoption of the sewer by the city in its public capacity. By the conveyance and use of the sewer by the bridge trustees it was evidence of a possession, use, or control of the sewer by the cities of Hew York and Brooklyn, and that only as private owners, and not a possession, use, or control of such sewer by the city of Hew York under any public authority, or impressed with any public duty. As has already been suggested, even if the drain was overcharged by the bridge trustees, it is difficult to see that they were under any obligation to the plaintiff. The users of a common drain have no action one against the other. It is no more the duty of the one to keep it open than it is the duty of the other, and if this drain was stopped it was just as much the duty of the plaintiff to see that it was opened as it was the duty of the owners of the property Ho. 17 Chatham street to do so. The action of the bridge trustees in acquiring the title to this property and its appurtenances in no manner rendered the drain a public sewer. It was an appurtenant to the property just the same as before, and was just as private as it liad been before; and the mere fact that the cities of Hew York and Brooklyn owned this property, represented by their servants, the bridge trustees, in no wise altered this relation. The court, therefore, seems to have been entirely correct in holding that the plaintiff had no right to recover if the damage sustained by him resulted from a stoppage in the private drain which had been constructed to connect 17 Chatham street with the sewer in Frankfort street, and the jury having found bytheir verdict that the obstruction was not in Frankfort street, which finding was certainly according to the evidence, there seems to be no reason for disturbing the verdict which has been rendered.
Various other exceptions have been taken to the rejection of evidence. Among others was an objection to the reading of a portion of the testimony taken on the preliminary examination of the plaintiff, pursuant to the statute, by the comptroller. The record shows that the original of such examination was in court, and the plaintiff was shown what purported to be his signature to such examination, and asked if it was his, and lie said it was. He was then asked whether lie did not swpar thus and so in that examination before the comptroller, and a variety of questions were put to him in that form. It appears from the record—improperly, as no such statement should have been made, in view of the manifest manner in which the question was put— that the questioner read from this examination, and asked the witness whether he did'not swear thus and so before the comptroller. It was not at all necessary in order to frame a perfect question that he should have shown the plaintiff this examination, or read from any portion of it; but if he chose to put the question, using the examination for the purpose of framing the question, the examiner had a right to do so. He was not reading the examination in evidence, or any part of it. He was only asking the witness whether, on a previous occasion in connection with this transaction, he had not stated certain things. This gave no right upon the part of the plaintiff to have read the whole of his deposition. If there was anything that was pertinent in reference to-the matter inquired about, and which would explain the answers which he then made, it was competent upon the part of his counsel to have asked
Our attention is called to another exception which is claimed to exist, and which, if it did exist, would be a very serious impediment in the way of the affirmance of this judgment. It is claimed upon the part of the appellant that the following question was excluded,—the witness on the stand being Mr. Stevenson Towle, who had testified that during the years 1882 and 1883 he held the position of chief engineer of the bureau of sewers, and it is claimed that Mr. Towle, by reason of his position, might well be presumed to be officially cognizant of all acts of the city which were performed in reference to that sewer, in order to establish adoption or dominion over the sewer by the city. The question put to Mr. Towle was: “Did your department do anything with that private drain while you were there, so far as you know?” It is claimed that this question was put by the plaintiff’s counsel, and was excluded, and that the plaintiff excepted. It however appears from the record that the question was put by defendant’s counsel; that the plaintiff objected to its being answered, the objection was overruled and an exception taken, and the question was answered: “We did not.” Upon the whole case we are of opinion that no error was committed, and that the judgment should be affirmed, with costs. All concur.