192 N.Y. 105 | NY | 1908
The Nepperhan river flows through the city of Yonkers from east to west discharging into the Hudson river. In 1860 there had been several dams constructed along the course of the river, the water being utilized for mill purposes. About this time the village of Yonkers laid out and constructed Warburton avenue across a pond formed by one of these dams. The street was a solid causeway with two openings of twenty feet each to permit the flow of the water. In 1878 the city of Yonkers (the successor of the village) *108
reconstructed Warburton avenue across the pond with a single opening of forty feet for the flow of the stream. The location of this opening was such that one of the abutments of the former twenty-foot opening lay askew across a part of the new forty foot opening. This abutment was taken down to the bottom of the pond and the stone removed. The movement of the water was then sluggish and no complaint is made that the opening so left in Warburton avenue was not adequate and sufficient to permit the proper flow of the stream at that time. In 1892, however, the pond had become a nuisance from the accumulation of filth and refuse therein and the board of health of the city of Yonkers removed the dam which lay below Warburton avenue. (People exrel. Copcutt v. Board of Health,
In their complaint the plaintiffs charge other grounds of liability against defendant than that on which the trial court based its decision. They charge that the reconstruction of the street in 1878 was negligent and improper and that the waterway was insufficient and inadequate; that the removal of the lower dam by the board of health was wanton, unlawful and negligently and carelessly done and sought to charge the town with liability for the act of the board of health. They also charged that the defendant by constructing, paving and flagging streets and avenues on the lands adjacent to the river, had diverted and cast into the river greater quantities of surface water, particularly at the time of storms, thereby greatly accelerating the flow of water therein. The trial court refused to predicate liability on the grounds just mentioned; nevertheless the plaintiffs still seek to support the judgment before us on those grounds. They may be disposed of, however, very briefly. The board of health was not the agent of the city in the destruction of the dam for the purpose of abating a nuisance, and the city was not liable for its acts. In Bamber v. City of Rochester (26 Hun, 587) the city was held not to be liable for a quantity of rags destroyed by the board of health as infectious and dangerous to the public health. Judge HAIGHT, then in the Supreme Court, said: "The duties devolving upon the board of health do not relate to the exercise of corporate powers, neither are their duties for the benefit of the corporation in its local or special interest. Their duties relate to the preservation of the health of the public; the individuals residing in the city may be benefited by the faithful discharge of the duties of such officers, so may the public at large. The duties of such officers are, therefore, public in their nature, and they should be regarded as the servants and agents of the public, instead of the corporation." The judgment was affirmed in this court on that opinion. (See, also, Maxmilian v. Mayor, etc., of N.Y.,
We are now brought to the consideration of the grounds upon which the trial court based its judgment; that is to say, that the city, in reconstructing Warburton avenue, left the *111
old abutment in the waterway, and that abutment caused the damage to the plaintiffs. We think that these two facts standing alone are insufficient to render the defendant liable. The reconstruction of Warburton avenue was found by the trial court to have been done under the provisions of their charter, and it having been constructed for more than twenty years prior to the commencement of this action, the presumption is that its maintenance was lawful. In fact, I do not see that the authority of the city or village to carry Warburton avenue across the stream is or can be challenged by the plaintiffs. This being the case, the defendant could be charged with liability for damages occasioned by its construction only by reason of negligence. It must be borne in mind that the injury suffered by the plaintiffs was strictly consequential. The leading case on this subject isBellinger v. N.Y.C.R.R. Co. (
The judgment should be reversed and a new trial granted, costs to abide the event.
GRAY, HAIGHT, WERNER, WILLARD BARTLETT and CHASE, JJ., concur; VANN, J., not voting.
Judgment reversed, etc. *113