184 A.D. 494 | N.Y. App. Div. | 1918
The plaintiffs were velvet merchants engaged in business on the southwest corner of Thirty-first street and Fourth avenue, New York city. During the night of August 10, 1915, a heavy flow of water came into their premises from the sidewalk through the walls. The sidewalk was immediately dug up and it was found that the water was flowing in from a pipe running parallel with the building line and located under the sidewalk at a point about three feet east of the house line. A photograph of this pipe is reproduced in the record, showing the pipe after a plug was put in it the night of August tenth. The city devotes much effort to showing that this plug was not inserted in the main itself, which ran parallel with the premises, but in a plug iron pipe extending an inch and a half westerly from the main, designed to permit a service pipe to be connected with the main. The city contends that this inch and a half excrescence was a service pipe and that, therefore, the plaintiff cannot recover, for no obligation rested on the city to take care of service pipes. This contention does not commend itself. In the first place, there was no service pipe running into the premises from this plug, and secondly, it was obviously intended for nothing but a connection with the four-inch pipe or main and was, in effect, a part of the four-inch pipe or main. If there was a leak in this plug or excrescence it was the same thing and properly considered as a leak in the
The city further contends that the four-inch pipe was a service pipe and not a city main and that, therefore, plaintiffs could not recover. This was submitted to the jury and the pipe was found by the jury to be a main. That it was a main there can be no serious question. It appears that the houses on the west side of Fourth avenue between Thirty-first and Thirtieth streets were originally supplied by means of five-eighths-inch service pipes connecting with a six-inch main which ran under the bed of Fourth avenue. In 1906, when the subway was constructed, it became necessary to make changes, and a contract was entered into between the board of rapid transit railroad commissioners, McDonald and the Interborough to construct ventilating chambers for the subway at numerous points along the route, among others at Fourth avenue just south of Thirty-first street. This made it impossible to continue the small service pipes from the six-inch main into the premises, and the situation was relieved by running a four-inch by-pass pipe to the west of the chamber, connecting with the six-inch main north and south of the ventilating chamber. This four-inch pipe or main was the one above referred to, and new service pipes were run into the various buildings between Thirty-first and Thirtieth streets from this four-inch pipe. All the houses on the block were thus supplied and it seems perfectly obvious that this four-inch pipe was, as the jury found, a city main.
The new taps 'into the four-inch pipe were placed by a plumber under an application duly filed on July 31, 1906. During the years 1910 and 1911 the old buildings Nos. 450 to 460 Fourth avenue, inclusive, on the block between Thirtieth and Thirty-first streets, were demolished and a new building constructed consisting of the corner building and the annex. On September 24, 1910, the old buildings had been demolished and excavation for the new corner building was in progress. At that time a one and one-half-inch service pipe was laid
Clarke, P. J., Laughlin, Smith and Page, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.