57 N.Y.S. 968 | N.Y. App. Div. | 1899
This action was brought to recover damages for injuries to personal property under circumstances hereinafter stated. The complaint was dismissed at the trial on the ground that liability of the defendant was not shown, and the exceptions were ordered to be heard in the first, instance at the Appellate Division.
The water which injured the plaintiffs’ merchandise was collected in a trench opened on the Fourth avenue, extending along that .■avenue from Seventeenth street to a point beyond and north of the -corner of Eighteenth street. The trench was dug by the Tubular Dispatch Company for the purpose of laying pneumatic tubes "therein. That company had legislative authority to dig the trench, But the work was to be done in accordance with a general permit granted in July, 1897, by the commissioner of public works of the •city of Hew York. By the terms of that permit, all the work was "to be due under the immediate supervision of an inspector to be appointed by the commissioner, and such an inspector was appointed. .He had direction of the work at and prior to the time of the occurrence which forms the subject-matter of this action. Hot only was a general permit granted, but early in October, 1897, the dispatch company received from the commissioner of public works a special permit to open Fourth avenue for a certain distance, which included the frontage of the plaintiffs’ premises. Under those permits, the •dispatch company (the city’s inspector supervising the work) dug the trench on the side of the Fourth avenue, its westerly line being within two feet of the curb line. The excavated material, consisting of earth and stones,' was thrown over and piled up on the space ■Between the trench and the curb, thus completely choking and •obstructing the gutter on Fourth avenue and the sewer culvert at the southwest corner of Eighteenth street and Fourth avenue. Under normal conditions all the surface water of Fourth avenue Between Union Square and Eighteenth street on the.west side, "would run into this culvert and find its way into the sewer. That •culvert was at the lowest point as the street was graded in that 'neighborhood, and into it should have entered the drainage of a
Although it would be impossible to determine how much of" the surface water would have found" its way into the culvert had "it and the gutter not been choked or obstructed in the way mentioned,, the jury nevertheless could have found that a contributing cause of the inundation in the plaintiff’s cellar was the condition, of the gutter and culvert. That the municipality is liable for neglect in permitting those conditions to exist, is settled. (Barton v. City of Syracuse, 36 N. Y. 54.) It was decided in that- case -that in the construction of sewers and keeping them in repair, municipal corporations-act ministerially and are bound to exercise needful. diligence,, prudence and care, and the authorities 'in support of that rule are cited 'in the opinion-of the court. The rule is not varied because some third party does the act which results in the mischief, provided the, city has actual notice or knowledge of the existence of the obstruction or a sufficient time has elapsed to justify the inference or imputation of notice. The proof shows that the gutter and culvert were, in the condition complained of for two days or more. It is unnecessary to determine whether notice is to be implied in this- case, because it was proven that -an official of the city was in -charge of this work and that by the terms of the permit it Was being done under his. supervision and direction. But we are not required to place the, liability of the defendant upon the distinct ground of the condition: of the gutter and the culvert. The work connected with this trench was being done under a permit of the city and under terms and conditions which gave it the control of essential details of the - manner in which the work was to be performed. It has been frequently held that where a municipal corporation enters into a, contract with a third party to do work, but reserves to itself the manner in.
The manner of performance of this work was, under the terms of the permit, within the control of the municipality. In this case no,protection was afforded'against the accumulation of water in the trench and its percolation through the soil into the plaintiffs’ premises. The surface drainage from the extensive street territory was cut off so that it could not reach its usual, and appropriate outlet,
We have, therefore, the case of a work authorized by the city, the manner of performance of which is in the control of the city, the fact.that the trench was left open for two or three days, and the ' further fact that no safeguard or protection was afforded against the accumulation of the surf ace. water at a point from which it was liable to be discharged or would find its. way into and upon the premises of adjoining property owners.
The complaint was improperly dismissed. The exceptions must be sustained and a new trial ordered, with costs to the plaintiffs to abide the event.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ.,. concurred.
Exceptions sustained and new trial ordered, costs to plaintiffs to abide event.