
    Stephen Jenney et al., Resp’ts, v. The City of Brooklyn, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    Municipal corporations — Liability por injury through water escaping PROM HYDRANT.
    A municipal corporation does not insure the citizen against damage from works of its construction, such as a hydrant, if it has exercised reasonable care and vigilance in its erection and construction and has not omitted to properly superintend it for the purpose of keeping it in repair, and proof that plaintiffs sustained damage by flooding of their works with water from defendant’s main will not alone justify a recovery.
    Appeal from a judgment of the general term of the supreme court, second department, affirming a judgment of the circuit in' favor of the plaintiffs
    Between three and four o’clock of the morning of June 16, 1885, a watchman in the employ of the plaintiffs found that the fire hydrant between the curb stone and the wall of plaintiffs’ works had in some manner been removed, and in its place a stream of water was gushing up, which in a short time overflowed plaintiffs’ oil works to their damage in about the sum of $1,400.
    The plaintiffs proved that the hydrant was found detached from the main water pipe, the extent of the damage by water, which by reason thereof was permitted to flow over and upon their property, and rested.
    The defendant called a number' of witnesses who testified in effect that the hydrant had been erected and constructed about seven months before the injury to the plaintiffs; that they had taken part in the erection and construction; that the method of doing the work was the best known to them; that the materials used were new and good; and that when completed it was a good job.
    The plaintiffs did not offer any evidence in rebuttal. The court denied defendant’s motion for a nonsuit at the close of the testimony and submitted to the jury for their determination whether the hydrant was faultily constructed.
    
      Almet F. Jenlcs, for app’ltHomer A. Felson, for resp’ts.
    
      
       Reversing 8 N. Y. State Rep., 808.
    
   Parker, J.

In the construction of the water main and fire hydrant, the defendant did that which it lawfully might.

Ho contractual relations existed between it and the plaintiffs, and in the construction and maintenance of water works, mains and hydrants for the benefit of the municipality, it owed to the plaintiffs no other or further duty than to the other residents of the city.

A municipal corporation does not insure the citizen against damage from works of its construction. Its obligation and duty in such respect is measured by the exercise of reasonable care and vigilanee. Liability can only be predicated upon its neglect or misconduct. McCarthy v. Syracuse, 46 N. Y., 194; Smith v. Mayor, etc., 66 id., 295 ; Ring v. Cohoes, 77 id., 83; Hunt v. Mayor, etc., 109 id., 134; 15 N. Y. State Rep., 62.

Proof that the plaintiffs sustained damage by the flooding of their works with water from defendant’s mains could not alone justify a recovery. It was necessary to go further and show that the injury was occasioned by an omission of duty on the part of the municipality, in that it failed to use reasonable care in the erection and construction of the hydrant; or thereafter omitted to properly superintend it for the purpose of keeping it in repair. Mo attempt was made to show that the method of construction adopted by the -city was defective; the hydrant imperfect; the materials of inferior quality; the workmen unskillful; or that the work was not carefully and thoroughly done.

Meither by the testimony of an eye witness or opinion of an expert was an effort made by evidence to account for the removal of the hydrant, which resulted in the escape of the water. The evidence at most permitted a guess that the hydrant had been forced out by the pressure of water, rather than by some active power above the surface.

On the other hand, five or six witnesses who took part in the erection of the hydrant asserted that the plan of construction was the best known to them; that the materials used were new and good; the work skillfully done; and that when completed it was a good job.

We think the case was without evidence to "support a finding that the injury was due to the negligence of the defendant in constructing the hydrant.

It follows that the motion for non-suit should have been granted.

The judgment should be reversed.

All concur.  