142 N.Y.S. 361 | N.Y. Sup. Ct. | 1913
These six actions were by the consent of counsel tried together before the court without a jury. The several owners of the premises numbered 520, 522, 524, 526, 528 and 530 Fifty-second street, Brooklyn, are suing the city of New York for damages to their respective buildings claimed to have been caused by the stoppage of the sewer in Fifty-second
In my opinion there is no evidence of any negligence on the part of the defendant which can be said to have caused the stoppage of the sewer. This sewer had not, to be sure, been inspected very often, but I do not find from the evidence that the defendant had omitted to exercise a reasonable clegree of watchfulness in ascertaining its condition from time to time and preventing
In Weidman v. City of New York, supra, the Appellate Division, by Van Brunt, P. J., stated the rule as follows: ‘ ‘ The city is not an insurer of the Condition of its various appliances for the comfort and convenience of its inhabitants, but is bound to use reasonable care and diligence in caring for these various appliances and in keeping the same in repair.’’
In Beyer v. City of New York, supra, the court, by Jenks, J., said: “ The obligation upon the defendant was due care to prevent the overflow of the sewer through the house connection of plaintiff’s premises. The evidence does not show that there was fault in the construction of the sewer, or negligence, either in the omission to remove the obstruction which caused the overflow, after notice thereof, actual or constructive, or in the inspection of the sewer system. The evidence indicates that the ‘ backing up ’ of the sewage was caused by a stoppage of sticks used by children when in the street at play in the game of tip cat. It does not appear how long this stoppage had existed, and consequently that any reasonable inspection, such as could be exacted by the most rigid rule imposed upon a municipality in charge of so great a system, could have revealed the obstruction.”
In the cases at bar the overflow was an isolated instance and it is not shown that there was any defect of original construction of the sewer which could account for or reasonably be expected to have caused the stoppage upon this occasion. On the contrary it was proven that the sewer had an unusually good opportunity for clearing itself of obstructions, on account of the grade of the street in which it was constructed, and under the authorities cited the city would not be liable for damages.resulting, from such an obstruction
I think, however, that the city, through its employees, is chargeable with negligence in not sooner remedying the defective condition in this case. Notice was given on the night of January first to an official whose duties related to the safety of buildings in the district in question, and there was some evidence that this official, who was an inspector, reported the dangerous condition to the head of the unsafe building division of the bureau of buildings some time on January second, stating the cause of the dangerous condition to be a sewer flood. This last official apparently did nothing about the matter until the following morning when notice was sent to the sewer department, as above mentioned. It is obvious that men might have been sent early on Monday morning, to remove the stoppage. Yet nothing was done until Tuesday noon. This, I think, was negligence, for the damages flowing from which the defendant is responsible. The contention that defendant was excused from prompt action by the fact that Monday was a legal holiday is not entitled to serious consideration. It is the plain duty of the city to have somewhere a force always ready, day and night, Sundays and holidays, to meet emergencies of this nature, just as much as it is to have a force ready to put out fires, and it does not seem to me that the city is exonerated from liability for damages resulting from its negligence merely because it is not clearly shown that notice was given to the particular branch of the municipal government charged with the duty of repair of the sewer. In other words, I think the plaintiffs were not charged with the duty of notifying a particular official of the city and determining at their peril which officer had jurisdiction, but only with the duty of calling the defect to the attention of some responsible
“ The court refused to charge this request, and we think properly. It was too broad. The first part of the proposition was undoubtedly correct, but the testimony clearly showed some substantial damages to which the plaintiffs were unquestionably entitled, if the issues as to negligence were decided in their favor, and the failure to distinguish as to all the items between damages of that character, and those to which the plaintiffs were not entitled, could not be visited on the plaintiffs, under the circumstances, by confining their recovery to mere nominal damages.
“ The same remark is applicable to the exception to the refusal of the judge to charge that there was no evidence in the case from which the jury could determine how long the plaintiffs were deprived of the use of their boat by reason of any negligence of the defendant, and that, therefore, the plaintiffs were not entitled to recover any damages for the supposed loss of the use of the boat. If the request had been to charge that the jury could only allow such damages,
In the cases at bar however the record did not clearly show “ some substantial damages to which the plaintiffs were unquestionably entitled, if the issues as to negligence were decided in their favor.” On the contrary the “substantial damages” appear to have resulted from the stoppage and overflow and not from the delay in applying the remedy.
Judgment is directed in favor of the plaintiff in each action for six cents damages.
Judgments for plaintiffs.