
    Bianca DeRoy Ettlinger, Appellant, v. The City of New York, Respondent.
    (Supreme Court, Appellate Term,
    March, 1908.)
    Municipal corporations — Liability with respect to sewers, drains and waters — In general — Flow from broken water main.
    Negligence — Actions — Evidence — Weight and sufficiency.
    Upon appeal from a judgment dismissing a complaint on plaintiff’s evidence alone, she is entitled not only to have her testimony believed but to all favorable inferences that may reasonably be drawn therefrom.
    A municipal corporation does not insure its citizens against damage from works of its construction; its obligation and duty in that respect are measured by the exercise of reasonable care and vigilance and liability can only be predicated upon its neglect or misconduct.
    Where, in an action against the city of New York for damages to plaintiff’s property caused by an overflow which resulted from a broken main, it appears that the flow was discovered about 3 A. m.; that, the city’s representative was immediately notified; that the flow ceased about 8 a. m. ; that the person notified came at 1 ' l>. M. to make inquiry and that the repair gang went to work on the broken main, the plaintiff has made out a prima facie case which calls for some explanation from the defendant.
    Appeal by the plaintiff from a judgment in favor of the defendant-, rendered in the Municipal Court of the city of Hew York, twelfth district, borough of Manhattan.
    Gainsburg & Solomon (I. Gainsburg, of counsel), for appellant.
    Francis K. Pendleton (Theodore Connoly and Thomas F. Noonan, of counsel), for respondent.
   Per Curiam.

The case came on for trial before the court and a jury, and upon plaintiff’s evidence alone the complaint was dismissed on the ground of a failure on the part of the plaintiff to prove notice to defendant of the defective condition of the water mains. On October 31, 1906, an overflow occurred at Ninety-eighth street and Broadway, which flooded the cellar of the apartment-house, No. 231 West Ninety-sixth street, in which plaintiff lived, to a depth of five feet and damaged some of plaintiff’s property which had lawfully been left in one- of the storage compartments in said cellar, for which injuries plaintiff brought this action. As the complaint was dismissed on plaintiff’s evidence alone, that evidence is entitled not only to belief but to all favorable inferences that may reasonably be drawn therefrom. The flow of water was caused by a defective condition of the city water mains. The flow was discovered about three A. m. The defendant’s representative was notified of the flow about three a. m., and at eight a. m. the flow ceased. Defendant’s representative came to make inquiries about one p. m., and the repair gang went to work on the broken main. It is true that a municipal corporation does not insure citizens ag’ainst damage from works of its construction, and its obligation and duty in such respect are measured by the exercise of reasonable care and vigilance, and liability can only be predicated upon its neglect or misconduct. Jenney v. City of Brooklyn, 120 N. Y. 164. Nevertheless, city mains do not break, if properly constructed, unless for some exceptional cause which may or may not be attributable to negligence; nor is the flow of water from such broken main permitted under ordinary circumstances to continue for five hours after notice to the city authorities. It seems to us that plaintiff made out a prima facie case, which called upon the defendant for some explanation. Griffen v. Manice, 166 N. Y. 188, 193.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Gildersleeye and MacLeak, JJ., concur.

Bischoff, J.

(concurring). I concur in the reversal of the judgment and new trial. The water mains were under the exclusive management and control of the defendant; and a leakage therefrom sufficient to inundate adjacent premises is not a matter of ordinary occurrence, if proper care in the maintenance of the mains is exercised. The fact of the leakage, therefore, gave rise to a presumption of negligence which it was the defendant’s duty to meet. Lawson Presump. Evi. (2d ed.), p. 122, Rule 19b, and cases cited; Griffen v. Manice, 166 N. Y. 188, 193, 195.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  